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Subchapter OGain or Loss on Disposition of Property

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PART IDETERMINATION OF AMOUNT OF AND RECOGNITION OF GAIN OR LOSS ( 10011002)


PART IIBASIS RULES OF GENERAL APPLICATION ( 10111024) PART IIICOMMON NONTAXABLE EXCHANGES ( 10311045) PART IVSPECIAL RULES ( 10511061) [PART VREPEALED] ( 1071) [PART VIREPEALED] ( 1081_to_1083) PART VIIWASH SALES; STRADDLES ( 10911092) [PART VIIIREPEALED] ( 1101_to_1103) [PART IXREPEALED] ( 1111)

PART IDETERMINATION OF AMOUNT OF AND RECOGNITION OF GAIN OR LOSS


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1001. Determination of amount of and recognition of gain or loss [ 1002. Repealed.]

1001. Determination of amount of and recognition of gain or loss


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(a) Computation of gain or loss The gain from the sale or other disposition of property shall be the excess of the amount realized therefrom over the adjusted basis provided in section1011 for determining gain, and the loss shall be the excess of the adjusted basis provided in such section for determining loss over the amount realized. (b) Amount realized

The amount realized from the sale or other disposition of property shall be the sum of any money received plus the fair market value of the property (other than money) received. In determining the amount realized (1) there shall not be taken into account any amount received as reimbursement for real property taxes which are treated under section 164(d) as imposed on the purchaser, and (2) there shall be taken into account amounts representing real property taxes which are treated under section 164 (d) as imposed on the taxpayer if such taxes are to be paid by the purchaser. (c) Recognition of gain or loss Except as otherwise provided in this subtitle, the entire amount of the gain or loss, determined under this section, on the sale or exchange of property shall be recognized. (d) Installment sales Nothing in this section shall be construed to prevent (in the case of property sold under contract providing for payment in installments) the taxation of that portion of any installment payment representing gain or profit in the year in which such payment is received. (e) Certain term interests (1) In general In determining gain or loss from the sale or other disposition of a term interest in property, that portion of the adjusted basis of such interest which is determined pursuant to section 1014, 1015, or 1041 (to the extent that such adjusted basis is a portion of the entire adjusted basis of the property) shall be disregarded. (2) Term interest in property defined For purposes of paragraph (1), the term term interest in property means (A) a life interest in property, (B) an interest in property for a term of years, or (C) an income interest in a trust. (3) Exception Paragraph (1) shall not apply to a sale or other disposition which is a part of a transaction in which the entire interest in property is transferred to any person or persons.

1002. Repealed. Pub. L. 94455, title XIX, 1901(b)(28)(B)(i), Oct. 4, 1976, 90 Stat. 1799]
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Section, act Aug. 16, 1954, ch. 736, 68A Stat. 295, related to the recognition of the entire amount of gain or loss determined under section 1001 on the sale or exchange of property.

ART IIBASIS RULES OF GENERAL APPLICATION


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1011. Adjusted basis for determining gain or loss 1012. Basis of propertycost 1013. Basis of property included in inventory 1014. Basis of property acquired from a decedent 1015. Basis of property acquired by gifts and transfers in trust

1016. Adjustments to basis 1017. Discharge of indebtedness [ 1018. Repealed.] 1019. Property on which lessee has made improvements [ 1020. Repealed.] 1021. Sale of annuities

1022. Treatment of property acquired from a decedent dying after December 31, 2009 1023. Cross references [ 1024. Renumbered 1023]

1011. Adjusted basis for determining gain or loss


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(a) General rule The adjusted basis for determining the gain or loss from the sale or other disposition of property, whenever acquired, shall be the basis (determined under section 1012 or other applicable sections of this subchapter and subchapters C (relating to corporate distributions and adjustments), K (relating to partners and partnerships), and P (relating to capital gains and losses)), adjusted as provided in section 1016. (b) Bargain sale to a charitable organization If a deduction is allowable under section 170 (relating to charitable contributions) by reason of a sale, then the adjusted basis for determining the gain from such sale shall be that portion of the adjusted basis which bears the same ratio to the adjusted basis as the amount realized bears to the fair market value of the property.

1012. Basis of propertycost


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The basis of property shall be the cost of such property, except as otherwise provided in this subchapter and subchapters C (relating to corporate distributions and adjustments), K (relating to partners and partnerships), and P (relating to capital gains and losses). The cost of real property shall not include any amount in respect of real property taxes which are treated under section 164 (d) as imposed on the taxpayer.

1013. Basis of property included in inventory


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If the property should have been included in the last inventory, the basis shall be the last inventory value thereof.

1014. Basis of property acquired from a decedent

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(a) In general Except as otherwise provided in this section, the basis of property in the hands of a person acquiring the property from a decedent or to whom the property passed from a decedent shall, if not sold, exchanged, or otherwise disposed of before the decedents death by such person, be (1) the fair market value of the property at the date of the decedents death, (2) in the case of an election under either section 2032 or section 811(j) of the Internal Revenue Code of 1939 where the decedent died after October 21, 1942, its value at the applicable valuation date prescribed by those sections, (3) in the case of an election under section 2032A, its value determined under such section, or (4) to the extent of the applicability of the exclusion described in section2031 (c), the basis in the hands of the decedent. (b) Property acquired from the decedent For purposes of subsection (a), the following property shall be considered to have been acquired from or to have passed from the decedent: (1) Property acquired by bequest, devise, or inheritance, or by the decedents estate from the decedent; (2) Property transferred by the decedent during his lifetime in trust to pay the income for life to or on the order or direction of the decedent, with the right reserved to the decedent at all times before his death to revoke the trust; (3) In the case of decedents dying after December 31, 1951, property transferred by the decedent during his lifetime in trust to pay the income for life to or on the order or direction of the decedent with the right reserved to the decedent at all times before his death to make any change in the enjoyment thereof through the exercise of a power to alter, amend, or terminate the trust; (4) Property passing without full and adequate consideration under a general power of appointment exercised by the decedent by will; (5) In the case of decedents dying after August 26, 1937, and before January 1, 2005, property acquired by bequest, devise, or inheritance or by the decedents estate from the decedent, if the property consists of stock or securities of a foreign corporation, which with respect to its taxable year next preceding the date of the decedents death was, under the law applicable to such year, a foreign personal holding company. In such case, the basis shall be the fair market value of such property at the date of the decedents death or the basis in the hands of the decedent, whichever is lower; (6) In the case of decedents dying after December 31, 1947, property which represents the surviving spouses one-half share of community property held by the decedent and the surviving spouse under the community property laws of any State, or possession of the United States or any foreign country, if at least one-half of the whole of the community interest in such property was includible in determining the value of the decedents gross estate under chapter 11 of subtitle B (section 2001 and following, relating to estate tax) or section 811 of the Internal Revenue Code of 1939; (7) In the case of decedents dying after October 21, 1942, and on or before December 31, 1947, such part of any property, representing the surviving spouses one-half share of property held by a decedent and the surviving spouse under the community property laws of any State, or possession of the United States or any foreign country, as was included in determining the value of the gross estate of the decedent, if a tax under chapter 3 of the Internal Revenue Code of 1939 was payable on the transfer of the net estate of the decedent. In such case, nothing in this paragraph shall reduce the basis below that which would exist if the Revenue Act of 1948 had not been enacted; (8) In the case of decedents dying after December 31, 1950, and before January 1, 1954, property which represents the survivors interest in a joint and survivors annuity if the value of any part of such interest was required to be included in determining the value of decedents gross estate under section 811 of the Internal Revenue Code of 1939; (9) In the case of decedents dying after December 31, 1953, property acquired from the decedent by reason of death, form of ownership, or other conditions (including property acquired through the exercise or non-exercise of a power of appointment), if by reason

thereof the property is required to be included in determining the value of the decedents gross estate under chapter 11 of subtitle B or under the Internal Revenue Code of 1939. In such case, if the property is acquired before the death of the decedent, the basis shall be the amount determined under subsection (a) reduced by the amount allowed to the taxpayer as deductions in computing taxable income under this subtitle or prior income tax laws for exhaustion, wear and tear, obsolescence, amortization, and depletion on such property before the death of the decedent. Such basis shall be applicable to the property commencing on the death of the decedent. This paragraph shall not apply to (A) annuities described in section 72; (B) property to which paragraph (5) would apply if the property had been acquired by bequest; and (C) property described in any other paragraph of this subsection. (10) Property includible in the gross estate of the decedent under section2044 (relating to certain property for which marital deduction was previously allowed). In any such case, the last 3 sentences of paragraph (9) shall apply as if such property were described in the first sentence of paragraph (9). (c) Property representing income in respect of a decedent This section shall not apply to property which constitutes a right to receive an item of income in respect of a decedent under section 691. (d) Special rule with respect to DISC stock If stock owned by a decedent in a DISC or former DISC (as defined in section992 (a)) acquires a new basis under subsection (a), such basis (determined before the application of this subsection) shall be reduced by the amount (if any) which would have been included in gross income under section 995 (c)as a dividend if the decedent had lived and sold the stock at its fair market value on the estate tax valuation date. In computing the gain the decedent would have had if he had lived and sold the stock, his basis shall be determined without regard to the last sentence of section 996 (e)(2) (relating to reductions of basis of DISC stock). For purposes of this subsection, the estate tax valuation date is the date of the decedents death or, in the case of an election under section 2032, the applicable valuation date prescribed by that section. (e) Appreciated property acquired by decedent by gift within 1 year of death (1) In general In the case of a decedent dying after December 31, 1981, if (A) appreciated property was acquired by the decedent by gift during the 1-year period ending on the date of the decedents death, and (B) such property is acquired from the decedent by (or passes from the decedent to) the donor of such property (or the spouse of such donor), the basis of such property in the hands of such donor (or spouse) shall be the adjusted basis of such property in the hands of the decedent immediately before the death of the decedent. (2) Definitions For purposes of paragraph (1) (A) Appreciated property The term appreciated property means any property if the fair market value of such property on the day it was transferred to the decedent by gift exceeds its adjusted basis. (B) Treatment of certain property sold by estate In the case of any appreciated property described in subparagraph (A) of paragraph (1) sold by the estate of the decedent or by a trust of which the decedent was the grantor, rules similar to the rules of paragraph (1) shall apply to the extent the donor of such property (or the spouse of such donor) is entitled to the proceeds from such sale. (f) Termination This section shall not apply with respect to decedents dying after December 31, 2009.

1015. Basis of property acquired by gifts and transfers in trust


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(a) Gifts after December 31, 1920 If the property was acquired by gift after December 31, 1920, the basis shall be the same as it would be in the hands of the donor or the last preceding owner by whom it was not acquired by gift, except that if such basis (adjusted for the period before the date of the gift as provided in section 1016) is greater than the fair market value of the property at the time of the gift, then for the purpose of determining loss the basis shall be such fair market value. If the facts necessary to determine the basis in the hands of the donor or the last preceding owner are unknown to the donee, the Secretary shall, if possible, obtain such facts from such donor or last preceding owner, or any other person cognizant thereof. If the Secretary finds it impossible to obtain such facts, the basis in the hands of such donor or last preceding owner shall be the fair market value of such property as found by the Secretary as of the date or approximate date at which, according to the best information that the Secretary is able to obtain, such property was acquired by such donor or last preceding owner. (b) Transfer in trust after December 31, 1920 If the property was acquired after December 31, 1920, by a transfer in trust (other than by a transfer in trust by a gift, bequest, or devise), the basis shall be the same as it would be in the hands of the grantor increased in the amount of gain or decreased in the amount of loss recognized to the grantor on such transfer under the law applicable to the year in which the transfer was made. (c) Gift or transfer in trust before January 1, 1921 If the property was acquired by gift or transfer in trust on or before December 31, 1920, the basis shall be the fair market value of such property at the time of such acquisition. (d) Increased basis for gift tax paid (1) In general If (A) the property is acquired by gift on or after September 2, 1958, the basis shall be the basis determined under subsection (a), increased (but not above the fair market value of the property at the time of the gift) by the amount of gift tax paid with respect to such gift, or (B) the property was acquired by gift before September 2, 1958, and has not been sold, exchanged, or otherwise disposed of before such date, the basis of the property shall be increased on such date by the amount of gift tax paid with respect to such gift, but such increase shall not exceed an amount equal to the amount by which the fair market value of the property at the time of the gift exceeded the basis of the property in the hands of the donor at the time of the gift. (2) Amount of tax paid with respect to gift For purposes of paragraph (1), the amount of gift tax paid with respect to any gift is an amount which bears the same ratio to the amount of gift tax paid under chapter 12 with respect to all gifts made by the donor for the calendar year (or preceding calendar period) in which such gift is made as the amount of such gift bears to the taxable gifts (as defined in section 2503 (a) but computed without the deduction allowed by section2521) made by the donor during such calendar year or period. For purposes of the preceding sentence, the amount of any gift shall be the amount included with respect to such gift in determining (for the purposes of section 2503 (a)) the total amount of gifts made during the calendar year or period, reduced by the amount of any deduction allowed with respect to such gift under section 2522 (relating to charitable deduction) or under section 2523 (relating to marital deduction). (3) Gifts treated as made one-half by each spouse For purposes of paragraph (1), where the donor and his spouse elected, under section 2513 to have the gift considered as made one-half by each, the amount of gift tax paid with respect to such gift under chapter 12 shall be the sum of the amounts of tax paid with respect to each half of such gift (computed in the manner provided in paragraph (2)). (4) Treatment as adjustment to basis For purposes of section 1016 (b), an increase in basis under paragraph (1) shall be treated as an adjustment under section 1016 (a). (5) Application to gifts before 1955 With respect to any property acquired by gift before 1955, references in this subsection to any provision of this title shall be deemed to refer to the corresponding provision of the

Internal Revenue Code of 1939 or prior revenue laws which was effective for the year in which such gift was made. (6) Special rule for gifts made after December 31, 1976 (A) In general In the case of any gift made after December 31, 1976, the increase in basis provided by this subsection with respect to any gift for the gift tax paid under chapter 12 shall be an amount (not in excess of the amount of tax so paid) which bears the same ratio to the amount of tax so paid as (i) the net appreciation in value of the gift, bears to (ii) the amount of the gift. (B) Net appreciation For purposes of paragraph (1), the net appreciation in value of any gift is the amount by which the fair market value of the gift exceeds the donors adjusted basis immediately before the gift. (e) Gifts between spouses In the case of any property acquired by gift in a transfer described in section1041 (a), the basis of such property in the hands of the transferee shall be determined under section 1041 (b)(2) and not this section.

1016. Adjustments to basis


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(a) General rule Proper adjustment in respect of the property shall in all cases be made (1) for expenditures, receipts, losses, or other items, properly chargeable to capital account, but no such adjustment shall be made (A) for taxes or other carrying charges described in section 266, or (B) for expenditures described in section 173 (relating to circulation expenditures), for which deductions have been taken by the taxpayer in determining taxable income for the taxable year or prior taxable years; (2) in respect of any period since February 28, 1913, for exhaustion, wear and tear, obsolescence, amortization, and depletion, to the extent of the amount (A) allowed as deductions in computing taxable income under this subtitle or prior income tax laws, and (B) resulting (by reason of the deductions so allowed) in a reduction for any taxable year of the taxpayers taxes under this subtitle (other than chapter 2, relating to tax on selfemployment income), or prior income, war-profits, or excess-profits tax laws, but not less than the amount allowable under this subtitle or prior income tax laws. Where no method has been adopted under section 167 (relating to depreciation deduction), the amount allowable shall be determined under the straight line method. Subparagraph (B) of this paragraph shall not apply in respect of any period since February 28, 1913, and before January 1, 1952, unless an election has been made under section 1020 (as in effect before the date of the enactment of the Tax Reform Act of 1976). Where for any taxable year before the taxable year 1932 the depletion allowance was based on discovery value or a percentage of income, then the adjustment for depletion for such year shall be based on the depletion which would have been allowable for such year if computed without reference to discovery value or a percentage of income; (3) in respect of any period (A) before March 1, 1913, (B) since February 28, 1913, during which such property was held by a person or an organization not subject to income taxation under this chapter or prior income tax laws, (C) since February 28, 1913, and before January 1, 1958, during which such property was held by a person subject to tax under part I of subchapter L (or the corresponding provisions of prior income tax laws), to the extent that paragraph (2) does not apply, and (D) since February 28, 1913, during which such property was held by a person subject to tax under part II [1] of subchapter L (or the corresponding provisions of prior income tax laws), to the extent that paragraph (2) does not apply,

for exhaustion, wear and tear, obsolescence, amortization, and depletion, to the extent sustained; (4) in the case of stock (to the extent not provided for in the foregoing paragraphs) for the amount of distributions previously made which, under the law applicable to the year in which the distribution was made, either were tax-free or were applicable in reduction of basis (not including distributions made by a corporation which was classified as a personal service corporation under the provisions of the Revenue Act of 1918 (40 Stat. 1057), or the Revenue Act of 1921 (42 Stat. 227), out of its earnings or profits which were taxable in accordance with the provisions of section 218 of the Revenue Act of 1918 or 1921); (5) in the case of any bond (as defined in section 171 (d)) the interest on which is wholly exempt from the tax imposed by this subtitle, to the extent of the amortizable bond premium disallowable as a deduction pursuant to section 171 (a)(2), and in the case of any other bond (as defined in section171 (d)) to the extent of the deductions allowable pursuant to section 171(a)(1) (or the amount applied to reduce interest payments under section171 (e) (2)) with respect thereto; (6) in the case of any municipal bond (as defined in section 75 (b)), to the extent provided in section 75 (a)(2); (7) in the case of a residence the acquisition of which resulted, under section 1034 (as in effect on the day before the date of the enactment of the Taxpayer Relief Act of 1997), in the nonrecognition of any part of the gain realized on the sale, exchange, or involuntary conversion of another residence, to the extent provided in section 1034 (e) (as so in effect); (8) in the case of property pledged to the Commodity Credit Corporation, to the extent of the amount received as a loan from the Commodity Credit Corporation and treated by the taxpayer as income for the year in which received pursuant to section 77, and to the extent of any deficiency on such loan with respect to which the taxpayer has been relieved from liability; (9) for amounts allowed as deductions as deferred expenses under section 616 (b) (relating to certain expenditures in the development of mines) and resulting in a reduction of the taxpayers taxes under this subtitle, but not less than the amounts allowable under such section for the taxable year and prior years; [(10) Repealed. Pub. L. 94455, title XIX, 1901(b)(21)(G), Oct. 4, 1976,90 Stat. 1798] (11) for deductions to the extent disallowed under section 268 (relating to sale of land with unharvested crops), notwithstanding the provisions of any other paragraph of this subsection; (12) to the extent provided in section 28(h) of the Internal Revenue Code of 1939 in the case of amounts specified in a shareholders consent made under section 28 of such code; [(13) Repealed. Pub. L. 108357, title IV, 413(c)(19), Oct. 22, 2004,118 Stat. 1509] (14) for amounts allowed as deductions as deferred expenses under section 174 (b) (1) (relating to research and experimental expenditures) and resulting in a reduction of the taxpayers taxes under this subtitle, but not less than the amounts allowable under such section for the taxable year and prior years; (15) for deductions to the extent disallowed under section 272 (relating to disposal of coal or domestic iron ore), notwithstanding the provisions of any other paragraph of this subsection; (16) in the case of any evidence of indebtedness referred to in section811 (b) (relating to amortization of premium and accrual of discount in the case of life insurance companies), to the extent of the adjustments required under section 811 (b) (or the corresponding provisions of prior income tax laws) for the taxable year and all prior taxable years; (17) to the extent provided in section 1367 in the case of stock of, and indebtedness owed to, shareholders of an S corporation; (18) to the extent provided in section 961 in the case of stock in controlled foreign corporations (or foreign corporations which were controlled foreign corporations) and of property by reason of which a person is considered as owning such stock; (19) to the extent provided in section 50 (c), in the case of expenditures with respect to which a credit has been allowed under section 38; (20) for amounts allowed as deductions under section 59 (e) (relating to optional 10-year writeoff of certain tax preferences); (21) to the extent provided in section 1059 (relating to reduction in basis for extraordinary dividends);

(22) in the case of qualified replacement property the acquisition of which resulted under section 1042 in the nonrecognition of any part of the gain realized on the sale or exchange of any property, to the extent provided in section 1042 (d),[2] (23) in the case of property the acquisition of which resulted under section 1043, 1044, 1045, or 1397B in the nonrecognition of any part of the gain realized on the sale of other property, to the extent provided in section 1043 (c), 1044 (d), 1045 (b)(3), or 1397B (b)(4), as the case may be,[2] (24) to the extent provided in section 179A (e)(6)(A),[2] (25) to the extent provided in section 30 (e)(1),[2] (26) to the extent provided in sections 23 (g) and 137 (e),[2] (27) in the case of a residence with respect to which a credit was allowed under section 1400C, to the extent provided in section 1400C (h),[2] (28) in the case of a facility with respect to which a credit was allowed under section 45F, to the extent provided in section 45F (f)(1),[2] (29) in the case of railroad track with respect to which a credit was allowed under section 45G, to the extent provided in section 45G (e)(3),[2] (30) to the extent provided in section 179B (c),[2] (31) to the extent provided in section 179D (e),[2] (32) to the extent provided in section 45L (e), in the case of amounts with respect to which a credit has been allowed under section 45L,[2] (33) to the extent provided in section 25C (f), in the case of amounts with respect to which a credit has been allowed under section 25C,[2] (34) to the extent provided in section 25D (f), in the case of amounts with respect to which a credit has been allowed under section 25D,[2] (35) to the extent provided in section 30B (h)(4),[2] (36) to the extent provided in section 30C (e)(1),[2] and (37) to the extent provided in section 30D (f)(1). (b) Substituted basis Whenever it appears that the basis of property in the hands of the taxpayer is a substituted basis, then the adjustments provided in subsection (a) shall be made after first making in respect of such substituted basis proper adjustments of a similar nature in respect of the period during which the property was held by the transferor, donor, or grantor, or during which the other property was held by the person for whom the basis is to be determined. A similar rule shall be applied in the case of a series of substituted bases. (c) Increase in basis of property on which additional estate tax is imposed (1) Tax imposed with respect to entire interest If an additional estate tax is imposed under section 2032A (c)(1) with respect to any interest in property and the qualified heir makes an election under this subsection with respect to the imposition of such tax, the adjusted basis of such interest shall be increased by an amount equal to the excess of (A) the fair market value of such interest on the date of the decedents death (or the alternate valuation date under section 2032, if the executor of the decedents estate elected the application of such section), over (B) the value of such interest determined under section 2032A (a). (2) Partial dispositions (A) In general In the case of any partial disposition for which an election under this subsection is made, the increase in basis under paragraph (1) shall be an amount (i) which bears the same ratio to the increase which would be determined under paragraph (1) (without regard to this paragraph) with respect to the entire interest, as (ii) the amount of the tax imposed under section 2032A (c)(1)with respect to such disposition bears to the adjusted tax difference attributable to the entire interest (as determined under section 2032A (c)(2)(B)). (B) Partial disposition For purposes of subparagraph (A), the term partial disposition means any disposition or cessation to which subsection (c)(2)(D), (h)(1)(B), or (i)(1)(B) of section 2032A applies. (3) Time adjustment made

Any increase in basis under this subsection shall be deemed to have occurred immediately before the disposition or cessation resulting in the imposition of the tax under section 2032A (c)(1). (4) Special rule in the case of substituted property If the tax under section 2032A (c)(1) is imposed with respect to qualified replacement property (as defined in section 2032A (h)(3)(B)) or qualified exchange property (as defined in section 2032A (i)(3)), the increase in basis under paragraph (1) shall be made by reference to the property involuntarily converted or exchanged (as the case may be). (5) Election (A) In general An election under this subsection shall be made at such time and in such manner as the Secretary shall by regulations prescribe. Such an election, once made, shall be irrevocable. (B) Interest on recaptured amount If an election is made under this subsection with respect to any additional estate tax imposed under section 2032A (c)(1), for purposes of section 6601 (relating to interest on underpayments), the last date prescribed for payment of such tax shall be deemed to be the last date prescribed for payment of the tax imposed by section 2001 with respect to the estate of the decedent (as determined for purposes of section 6601). (d) Reduction in basis of automobile on which gas guzzler tax was imposed If (1) the taxpayer acquires any automobile with respect to which a tax was imposed by section 4064, and (2) the use of such automobile by the taxpayer begins not more than 1 year after the date of the first sale for ultimate use of such automobile, the basis of such automobile shall be reduced by the amount of the tax imposed by section 4064 with respect to such automobile. In the case of importation, if the date of entry or withdrawal from warehouse for consumption is later than the date of the first sale for ultimate use, such later date shall be substituted for the date of such first sale in the preceding sentence. (e) Cross reference For treatment of separate mineral interests as one property, see section614.

[1] See References in Text note below. [2] So in original. The comma probably should be a semicolon.

1017. Discharge of indebtedness


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(a) General rule If (1) an amount is excluded from gross income under subsection (a) of section 108 (relating to discharge of indebtedness), and (2) under subsection (b)(2)(E), (b)(5), or (c)(1) of section 108, any portion of such amount is to be applied to reduce basis, then such portion shall be applied in reduction of the basis of any property held by the taxpayer at the beginning of the taxable year following the taxable year in which the discharge occurs. (b) Amount and properties determined under regulations (1) In general The amount of reduction to be applied under subsection (a) (not in excess of the portion referred to in subsection (a)), and the particular properties the bases of which are to be reduced, shall be determined under regulations prescribed by the Secretary. (2) Limitation in title 11 case or insolvency

In the case of a discharge to which subparagraph (A) or (B) of section108 (a)(1) applies, the reduction in basis under subsection (a) of this section shall not exceed the excess of (A) the aggregate of the bases of the property held by the taxpayer immediately after the discharge, over (B) the aggregate of the liabilities of the taxpayer immediately after the discharge. The preceding sentence shall not apply to any reduction in basis by reason of an election under section 108 (b)(5). (3) Certain reductions may only be made in the basis of depreciable property (A) In general Any amount which under subsection (b)(5) or (c)(1) of section 108 is to be applied to reduce basis shall be applied only to reduce the basis of depreciable property held by the taxpayer. (B) Depreciable property For purposes of this section, the term depreciable property means any property of a character subject to the allowance for depreciation, but only if a basis reduction under subsection (a) will reduce the amount of depreciation or amortization which otherwise would be allowable for the period immediately following such reduction. (C) Special rule for partnership interests For purposes of this section, any interest of a partner in a partnership shall be treated as depreciable property to the extent of such partners proportionate interest in the depreciable property held by such partnership. The preceding sentence shall apply only if there is a corresponding reduction in the partnerships basis in depreciable property with respect to such partner. (D) Special rule in case of affiliated group For purposes of this section, if (i) a corporation holds stock in another corporation (hereinafter in this subparagraph referred to as the subsidiary), and (ii) such corporations are members of the same affiliated group which file a consolidated return under section 1501 for the taxable year in which the discharge occurs, then such stock shall be treated as depreciable property to the extent that such subsidiary consents to a corresponding reduction in the basis of its depreciable property. (E) Election to treat certain inventory as depreciable property (i) In general At the election of the taxpayer, for purposes of this section, the term depreciable property includes any real property which is described in section 1221 (a)(1). (ii) Election An election under clause (i) shall be made on the taxpayers return for the taxable year in which the discharge occurs or at such other time as may be permitted in regulations prescribed by the Secretary. Such an election, once made, may be revoked only with the consent of the Secretary. (F) Special rules for qualified real property business indebtedness In the case of any amount which under section 108 (c)(1) is to be applied to reduce basis (i) depreciable property shall only include depreciable real property for purposes of subparagraphs (A) and (C), (ii) subparagraph (E) shall not apply, and (iii) in the case of property taken into account under section 108(c)(2)(B), the reduction with respect to such property shall be made as of the time immediately before disposition if earlier than the time under subsection (a). (4) Special rules for qualified farm indebtedness (A) In general Any amount which under subsection (b)(2)(E) of section 108 is to be applied to reduce basis and which is attributable to an amount excluded under subsection (a)(1)(C) of section 108 (i) shall be applied only to reduce the basis of qualified property held by the taxpayer, and (ii) shall be applied to reduce the basis of qualified property in the following order: (I) First the basis of qualified property which is depreciable property. (II) Second the basis of qualified property which is land used or held for use in the trade or business of farming. (III) Then the basis of other qualified property. (B) Qualified property For purposes of this paragraph, the term qualified property has the meaning given to such term by section 108 (g)(3)(C).

(C) Certain rules made applicable Rules similar to the rules of subparagraphs (C), (D), and (E) of paragraph (3) shall apply for purposes of this paragraph and section108 (g). (c) Special rules (1) Reduction not to be made in exempt property In the case of an amount excluded from gross income under section 108(a)(1)(A), no reduction in basis shall be made under this section in the basis of property which the debtor treats as exempt property under section 522 of title 11 of the United States Code. (2) Reductions in basis not treated as dispositions For purposes of this title, a reduction in basis under this section shall not be treated as a disposition. (d) Recapture of reductions (1) In general For purposes of sections 1245 and 1250 (A) any property the basis of which is reduced under this section and which is neither section 1245 property nor section 1250 property shall be treated as section 1245 property, and (B) any reduction under this section shall be treated as a deduction allowed for depreciation. (2) Special rule for section 1250 For purposes of section 1250 (b), the determination of what would have been the depreciation adjustments under the straight line method shall be made as if there had been no reduction under this section.

1018. Repealed. Pub. L. 96589, 6(h)(1), Dec. 24, 1980, 94 Stat. 3410]
How Current is This?

Section, acts Aug. 16, 1954, ch. 736, 68A Stat. 301; Oct. 4, 1976, Pub. L. 94455, title XIX, 1901(a)(124), 90 Stat. 1784, provided for adjustment of capital structure before Sept. 22, 1938.

1019. Property on which lessee has made improvements


How Current is This?

Neither the basis nor the adjusted basis of any portion of real property shall, in the case of the lessor of such property, be increased or diminished on account of income derived by the lessor in respect of such property and excludable from gross income under section 109 (relating to improvements by lessee on lessors property). If an amount representing any part of the value of real property attributable to buildings erected or other improvements made by a lessee in respect of such property was included in gross income of the lessor for any taxable year beginning before January 1, 1942, the basis of each portion of such property shall be properly adjusted for the amount so included in gross income.

1020. Repealed. Pub. L. 94455, title XIX, 1901(a)(125), Oct. 4, 1976, 90 Stat. 1784]
How Current is This?

Section, act Aug. 16, 1954, ch. 736, 68A Stat. 302, related to election to have section 1016 (a)(2)(B) of this title apply in respect of periods since Feb. 28, 1913, and before Jan. 1, 1952.

1021. Sale of annuities


How Current is This?

In case of the sale of an annuity contract, the adjusted basis shall in no case be less than zero.

1022. Treatment of property acquired from a decedent dying after December 31, 2009
How Current is This?

(a) In general Except as otherwise provided in this section (1) property acquired from a decedent dying after December 31, 2009, shall be treated for purposes of this subtitle as transferred by gift, and (2) the basis of the person acquiring property from such a decedent shall be the lesser of (A) the adjusted basis of the decedent, or (B) the fair market value of the property at the date of the decedents death. (b) Basis increase for certain property (1) In general In the case of property to which this subsection applies, the basis of such property under subsection (a) shall be increased by its basis increase under this subsection. (2) Basis increase For purposes of this subsection (A) In general The basis increase under this subsection for any property is the portion of the aggregate basis increase which is allocated to the property pursuant to this section. (B) Aggregate basis increase In the case of any estate, the aggregate basis increase under this subsection is $1,300,000. (C) Limit increased by unused built-in losses and loss carryovers The limitation under subparagraph (B) shall be increased by (i) the sum of the amount of any capital loss carryover under section 1212 (b), and the amount of any net operating loss carryover under section 172, which would (but for the decedents death) be carried from the decedents last taxable year to a later taxable year of the decedent, plus (ii) the sum of the amount of any losses that would have been allowable under section 165 if the property acquired from the decedent had been sold at fair market value immediately before the decedents death. (3) Decedent nonresidents who are not citizens of the United States In the case of a decedent nonresident not a citizen of the United States (A) paragraph (2)(B) shall be applied by substituting $60,000 for $1,300,000, and (B) paragraph (2)(C) shall not apply. (c) Additional basis increase for property acquired by surviving spouse (1) In general In the case of property to which this subsection applies and which is qualified spousal property, the basis of such property under subsection (a) (as increased under subsection (b)) shall be increased by its spousal property basis increase. (2) Spousal property basis increase

For purposes of this subsection (A) In general The spousal property basis increase for property referred to in paragraph (1) is the portion of the aggregate spousal property basis increase which is allocated to the property pursuant to this section. (B) Aggregate spousal property basis increase In the case of any estate, the aggregate spousal property basis increase is $3,000,000. (3) Qualified spousal property For purposes of this subsection, the term qualified spousal property means (A) outright transfer property, and (B) qualified terminable interest property. (4) Outright transfer property For purposes of this subsection (A) In general The term outright transfer property means any interest in property acquired from the decedent by the decedents surviving spouse. (B) Exception Subparagraph (A) shall not apply where, on the lapse of time, on the occurrence of an event or contingency, or on the failure of an event or contingency to occur, an interest passing to the surviving spouse will terminate or fail (i) (I) if an interest in such property passes or has passed (for less than an adequate and full consideration in money or moneys worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse), and (II) if by reason of such passing such person (or his heirs or assigns) may possess or enjoy any part of such property after such termination or failure of the interest so passing to the surviving spouse, or (ii) if such interest is to be acquired for the surviving spouse, pursuant to directions of the decedent, by his executor or by the trustee of a trust. For purposes of this subparagraph, an interest shall not be considered as an interest which will terminate or fail merely because it is the ownership of a bond, note, or similar contractual obligation, the discharge of which would not have the effect of an annuity for life or for a term. (C) Interest of spouse conditional on survival for limited period For purposes of this paragraph, an interest passing to the surviving spouse shall not be considered as an interest which will terminate or fail on the death of such spouse if (i) such death will cause a termination or failure of such interest only if it occurs within a period not exceeding 6 months after the decedents death, or only if it occurs as a result of a common disaster resulting in the death of the decedent and the surviving spouse, or only if it occurs in the case of either such event, and (ii) such termination or failure does not in fact occur. (5) Qualified terminable interest property For purposes of this subsection (A) In general The term qualified terminable interest property means property (i) which passes from the decedent, and (ii) in which the surviving spouse has a qualifying income interest for life. (B) Qualifying income interest for life The surviving spouse has a qualifying income interest for life if (i) the surviving spouse is entitled to all the income from the property, payable annually or at more frequent intervals, or has a usufruct interest for life in the property, and (ii) no person has a power to appoint any part of the property to any person other than the surviving spouse. Clause (ii) shall not apply to a power exercisable only at or after the death of the surviving spouse. To the extent provided in regulations, an annuity shall be treated in a manner similar to an income interest in property (regardless of whether the property from which the annuity is payable can be separately identified). (C) Property includes interest therein

The term property includes an interest in property. (D) Specific portion treated as separate property A specific portion of property shall be treated as separate property. For purposes of the preceding sentence, the term specific portion only includes a portion determined on a fractional or percentage basis. (d) Definitions and special rules for application of subsections (b) and (c) (1) Property to which subsections (b) and (c) apply (A) In general The basis of property acquired from a decedent may be increased under subsection (b) or (c) only if the property was owned by the decedent at the time of death. (B) Rules relating to ownership (i) Jointly held property In the case of property which was owned by the decedent and another person as joint tenants with right of survivorship or tenants by the entirety (I) if the only such other person is the surviving spouse, the decedent shall be treated as the owner of only 50 percent of the property, (II) in any case (to which subclause (I) does not apply) in which the decedent furnished consideration for the acquisition of the property, the decedent shall be treated as the owner to the extent of the portion of the property which is proportionate to such consideration, and (III) in any case (to which subclause (I) does not apply) in which the property has been acquired by gift, bequest, devise, or inheritance by the decedent and any other person as joint tenants with right of survivorship and their interests are not otherwise specified or fixed by law, the decedent shall be treated as the owner to the extent of the value of a fractional part to be determined by dividing the value of the property by the number of joint tenants with right of survivorship. (ii) Revocable trusts The decedent shall be treated as owning property transferred by the decedent during life to a qualified revocable trust (as defined in section 645 (b)(1)). (iii) Powers of appointment The decedent shall not be treated as owning any property by reason of holding a power of appointment with respect to such property. (iv) Community property Property which represents the surviving spouses one-half share of community property held by the decedent and the surviving spouse under the community property laws of any State or possession of the United States or any foreign country shall be treated for purposes of this section as owned by, and acquired from, the decedent if at least one-half of the whole of the community interest in such property is treated as owned by, and acquired from, the decedent without regard to this clause. (C) Property acquired by decedent by gift within 3 years of death (i) In general Subsections (b) and (c) shall not apply to property acquired by the decedent by gift or by inter vivos transfer for less than adequate and full consideration in money or moneys worth during the 3-year period ending on the date of the decedents death. (ii) Exception for certain gifts from spouse Clause (i) shall not apply to property acquired by the decedent from the decedents spouse unless, during such 3-year period, such spouse acquired the property in whole or in part by gift or by inter vivos transfer for less than adequate and full consideration in money or moneys worth. (D) Stock of certain entities Subsections (b) and (c) shall not apply to (i) stock or securities of a foreign personal holding company, (ii) stock of a DISC or former DISC, (iii) stock of a foreign investment company, or (iv) stock of a passive foreign investment company unless such company is a qualified electing fund (as defined in section 1295) with respect to the decedent. (2) Fair market value limitation The adjustments under subsections (b) and (c) shall not increase the basis of any interest in property acquired from the decedent above its fair market value in the hands of the decedent as of the date of the decedents death. (3) Allocation rules (A) In general The executor shall allocate the adjustments under subsections (b) and (c) on the return required by section 6018. (B) Changes in allocation

Any allocation made pursuant to subparagraph (A) may be changed only as provided by the Secretary. (4) Inflation adjustment of basis adjustment amounts (A) In general In the case of decedents dying in a calendar year after 2010, the $1,300,000, $60,000, and $3,000,000 dollar amounts in subsections (b) and (c)(2)(B) shall each be increased by an amount equal to the product of (i) such dollar amount, and (ii) the cost-of-living adjustment determined under section 1 (f)(3) for such calendar year, determined by substituting 2009 for 1992 in subparagraph (B) thereof. (B) Rounding If any increase determined under subparagraph (A) is not a multiple of (i) $100,000 in the case of the $1,300,000 amount, (ii) $5,000 in the case of the $60,000 amount, and (iii) $250,000 in the case of the $3,000,000 amount, such increase shall be rounded to the next lowest multiple thereof. (e) Property acquired from the decedent For purposes of this section, the following property shall be considered to have been acquired from the decedent: (1) Property acquired by bequest, devise, or inheritance, or by the decedents estate from the decedent. (2) Property transferred by the decedent during his lifetime (A) to a qualified revocable trust (as defined in section 645 (b)(1)), or (B) to any other trust with respect to which the decedent reserved the right to make any change in the enjoyment thereof through the exercise of a power to alter, amend, or terminate the trust. (3) Any other property passing from the decedent by reason of death to the extent that such property passed without consideration. (f) Coordination with section 691 This section shall not apply to property which constitutes a right to receive an item of income in respect of a decedent under section 691. (g) Certain liabilities disregarded (1) In general In determining whether gain is recognized on the acquisition of property (A) from a decedent by a decedents estate or any beneficiary other than a tax-exempt beneficiary, and (B) from the decedents estate by any beneficiary other than a tax-exempt beneficiary, and in determining the adjusted basis of such property, liabilities in excess of basis shall be disregarded. (2) Tax-exempt beneficiary For purposes of paragraph (1), the term tax-exempt beneficiary means (A) the United States, any State or political subdivision thereof, any possession of the United States, any Indian tribal government (within the meaning of section 7871), or any agency or instrumentality of any of the foregoing, (B) an organization (other than a cooperative described in section521) which is exempt from tax imposed by chapter 1, (C) any foreign person or entity (within the meaning of section 168(h)(2)), and (D) to the extent provided in regulations, any person to whom property is transferred for the principal purpose of tax avoidance. (h) Regulations The Secretary shall prescribe such regulations as may be necessary to carry out the purposes of this section.

1023. Cross references

How Current is This?

(1) For certain distributions by a corporation which are applied in reduction of basis of stock, see section 301 (c)(2). (2) For basis in case of construction of new vessels, see chapter 533 of title46, United States Code.

1024. Renumbered 1023]

PART IIICOMMON NONTAXABLE EXCHANGES


How Current is This?

1031. Exchange of property held for productive use or investment 1032. Exchange of stock for property 1033. Involuntary conversions [ 1034. Repealed.] 1035. Certain exchanges of insurance policies 1036. Stock for stock of same corporation 1037. Certain exchanges of United States obligations 1038. Certain reacquisitions of real property [ 1039. Repealed.]

1040. Use of appreciated carryover basis property to satisfy pecuniary bequest 1041. Transfers of property between spouses or incident to divorce

1042. Sales of stock to employee stock ownership plans or certain cooperatives 1043. Sale of property to comply with conflict-of-interest requirements

1044. Rollover of publicly traded securities gain into specialized small business investment companies 1045. Rollover of gain from qualified small business stock to another qualified small business stock

1031. Exchange of property held for productive use or investment


How Current is This?

(a) Nonrecognition of gain or loss from exchanges solely in kind (1) In general No gain or loss shall be recognized on the exchange of property held for productive use in a trade or business or for investment if such property is exchanged solely for property of like kind which is to be held either for productive use in a trade or business or for investment. (2) Exception This subsection shall not apply to any exchange of (A) stock in trade or other property held primarily for sale, (B) stocks, bonds, or notes, (C) other securities or evidences of indebtedness or interest, (D) interests in a partnership, (E) certificates of trust or beneficial interests, or (F) choses in action. For purposes of this section, an interest in a partnership which has in effect a valid election under section 761 (a) to be excluded from the application of all of subchapter K shall be treated as an interest in each of the assets of such partnership and not as an interest in a partnership. (3) Requirement that property be identified and that exchange be completed not more than 180 days after transfer of exchanged property For purposes of this subsection, any property received by the taxpayer shall be treated as property which is not like-kind property if (A) such property is not identified as property to be received in the exchange on or before the day which is 45 days after the date on which the taxpayer transfers the property relinquished in the exchange, or (B) such property is received after the earlier of (i) the day which is 180 days after the date on which the taxpayer transfers the property relinquished in the exchange, or (ii) the due date (determined with regard to extension) for the transferors return of the tax imposed by this chapter for the taxable year in which the transfer of the relinquished property occurs. (b) Gain from exchanges not solely in kind If an exchange would be within the provisions of subsection (a), of section1035(a), of section 1036(a), or of section 1037(a), if it were not for the fact that the property received in exchange consists not only of property permitted by such provisions to be received without the recognition of gain, but also of other property or money, then the gain, if any, to the recipient shall be recognized, but in an amount not in excess of the sum of such money and the fair market value of such other property. (c) Loss from exchanges not solely in kind If an exchange would be within the provisions of subsection (a), of section1035(a), of section 1036(a), or of section 1037(a), if it were not for the fact that the property received in exchange consists not only of property permitted by such provisions to be received without the recognition of gain or loss, but also of other property or money, then no loss from the exchange shall be recognized. (d) Basis If property was acquired on an exchange described in this section, section1035 (a), section 1036(a), or section 1037 (a), then the basis shall be the same as that of the property exchanged, decreased in the amount of any money received by the taxpayer and increased in the amount of gain or decreased in the amount of loss to the taxpayer that was recognized on such exchange. If the property so acquired consisted in part of the type of property permitted by this section, section 1035 (a), section 1036(a), or section 1037(a), to be received without the recognition of gain or loss, and in part of other property, the basis provided in this subsection shall be allocated between the properties (other than money) received, and for the purpose of the allocation there shall be assigned to such other property an amount equivalent to its fair market value at the date of the exchange. For purposes of this section, section 1035 (a), and section 1036 (a), where as part of the consideration to the taxpayer another party to the exchange assumed (as determined under section 357 (d)) a liability of the taxpayer, such assumption shall be considered as money received by the taxpayer on the exchange.

(e) Exchanges of livestock of different sexes For purposes of this section, livestock of different sexes are not property of a like kind. (f) Special rules for exchanges between related persons (1) In general If (A) a taxpayer exchanges property with a related person, (B) there is nonrecognition of gain or loss to the taxpayer under this section with respect to the exchange of such property (determined without regard to this subsection), and (C) before the date 2 years after the date of the last transfer which was part of such exchange (i) the related person disposes of such property, or (ii) the taxpayer disposes of the property received in the exchange from the related person which was of like kind to the property transferred by the taxpayer, there shall be no nonrecognition of gain or loss under this section to the taxpayer with respect to such exchange; except that any gain or loss recognized by the taxpayer by reason of this subsection shall be taken into account as of the date on which the disposition referred to in subparagraph (C) occurs. (2) Certain dispositions not taken into account For purposes of paragraph (1)(C), there shall not be taken into account any disposition (A) after the earlier of the death of the taxpayer or the death of the related person, (B) in a compulsory or involuntary conversion (within the meaning of section 1033) if the exchange occurred before the threat or imminence of such conversion, or (C) with respect to which it is established to the satisfaction of the Secretary that neither the exchange nor such disposition had as one of its principal purposes the avoidance of Federal income tax. (3) Related person For purposes of this subsection, the term related person means any person bearing a relationship to the taxpayer described in section 267(b) or 707 (b)(1). (4) Treatment of certain transactions This section shall not apply to any exchange which is part of a transaction (or series of transactions) structured to avoid the purposes of this subsection. (g) Special rule where substantial diminution of risk (1) In general If paragraph (2) applies to any property for any period, the running of the period set forth in subsection (f)(1)(C) with respect to such property shall be suspended during such period. (2) Property to which subsection applies This paragraph shall apply to any property for any period during which the holders risk of loss with respect to the property is substantially diminished by (A) the holding of a put with respect to such property, (B) the holding by another person of a right to acquire such property, or (C) a short sale or any other transaction. (h) Special rules for foreign real and personal property For purposes of this section (1) Real property Real property located in the United States and real property located outside the United States are not property of a like kind. (2) Personal property (A) In general Personal property used predominantly within the United States and personal property used predominantly outside the United States are not property of a like kind. (B) Predominant use Except as provided in subparagraphs (C) and (D), the predominant use of any property shall be determined based on (i) in the case of the property relinquished in the exchange, the 2-year period ending on the date of such relinquishment, and (ii) in the case of the property acquired in the exchange, the 2-year period beginning on the date of such acquisition. (C) Property held for less than 2 years

Except in the case of an exchange which is part of a transaction (or series of transactions) structured to avoid the purposes of this subsection (i) only the periods the property was held by the person relinquishing the property (or any related person) shall be taken into account under subparagraph (B)(i), and (ii) only the periods the property was held by the person acquiring the property (or any related person) shall be taken into account under subparagraph (B)(ii). (D) Special rule for certain property Property described in any subparagraph of section 168 (g)(4) shall be treated as used predominantly in the United States. (i) Special rules for mutual ditch, reservoir, or irrigation company stock For purposes of subsection (a)(2)(B), the term stocks shall not include shares in a mutual ditch, reservoir, or irrigation company if at the time of the exchange (1) the mutual ditch, reservoir, or irrigation company is an organization described in section 501 (c)(12)(A) (determined without regard to the percentage of its income that is collected from its members for the purpose of meeting losses and expenses), and (2) the shares in such company have been recognized by the highest court of the State in which such company was organized or by applicable State statute as constituting or representing real property or an interest in real property.

1032. Exchange of stock for property


How Current is This?

(a) Nonrecognition of gain or loss No gain or loss shall be recognized to a corporation on the receipt of money or other property in exchange for stock (including treasury stock) of such corporation. No gain or loss shall be recognized by a corporation with respect to any lapse or acquisition of an option, or with respect to a securities futures contract (as defined in section 1234B), to buy or sell its stock (including treasury stock). (b) Basis For basis of property acquired by a corporation in certain exchanges for its stock, see section 362.

1033. Involuntary conversions


How Current is This?

(a) General rule If property (as a result of its destruction in whole or in part, theft, seizure, or requisition or condemnation or threat or imminence thereof) is compulsorily or involuntarily converted (1) Conversion into similar property Into property similar or related in service or use to the property so converted, no gain shall be recognized. (2) Conversion into money Into money or into property not similar or related in service or use to the converted property, the gain (if any) shall be recognized except to the extent hereinafter provided in this paragraph: (A) Nonrecognition of gain If the taxpayer during the period specified in subparagraph (B), for the purpose of replacing the property so converted, purchases other property similar or related in service or use to the property so converted, or purchases stock in the acquisition of control of a corporation owning such other property, at the election of the taxpayer the gain shall be recognized only to the extent that the amount realized upon such conversion (regardless of whether such amount is received in one or more taxable years) exceeds the cost of such other property or

such stock. Such election shall be made at such time and in such manner as the Secretary may by regulations prescribe. For purposes of this paragraph (i) no property or stock acquired before the disposition of the converted property shall be considered to have been acquired for the purpose of replacing such converted property unless held by the taxpayer on the date of such disposition; and (ii) the taxpayer shall be considered to have purchased property or stock only if, but for the provisions of subsection (b) of this section, the unadjusted basis of such property or stock would be its cost within the meaning of section 1012. (B) Period within which property must be replaced The period referred to in subparagraph (A) shall be the period beginning with the date of the disposition of the converted property, or the earliest date of the threat or imminence of requisition or condemnation of the converted property, whichever is the earlier, and ending (i) 2 years after the close of the first taxable year in which any part of the gain upon the conversion is realized, or (ii) subject to such terms and conditions as may be specified by the Secretary, at the close of such later date as the Secretary may designate on application by the taxpayer. Such application shall be made at such time and in such manner as the Secretary may by regulations prescribe. (C) Time for assessment of deficiency attributable to gain upon conversion If a taxpayer has made the election provided in subparagraph (A), then (i) the statutory period for the assessment of any deficiency, for any taxable year in which any part of the gain on such conversion is realized, attributable to such gain shall not expire prior to the expiration of 3 years from the date the Secretary is notified by the taxpayer (in such manner as the Secretary may by regulations prescribe) of the replacement of the converted property or of an intention not to replace, and (ii) such deficiency may be assessed before the expiration of such 3year period notwithstanding the provisions of section6212 (c) or the provisions of any other law or rule of law which would otherwise prevent such assessment. (D) Time for assessment of other deficiencies attributable to election If the election provided in subparagraph (A) is made by the taxpayer and such other property or such stock was purchased before the beginning of the last taxable year in which any part of the gain upon such conversion is realized, any deficiency, to the extent resulting from such election, for any taxable year ending before such last taxable year may be assessed (notwithstanding the provisions of section 6212 (c) or 6501 or the provisions of any other law or rule of law which would otherwise prevent such assessment) at any time before the expiration of the period within which a deficiency for such last taxable year may be assessed. (E) Definitions For purposes of this paragraph (i) Control The term control means the ownership of stock possessing at least 80 percent of the total combined voting power of all classes of stock entitled to vote and at least 80 percent of the total number of shares of all other classes of stock of the corporation. (ii) Disposition of the converted property The term disposition of the converted property means the destruction, theft, seizure, requisition, or condemnation of the converted property, or the sale or exchange of such property under threat or imminence of requisition or condemnation. (b) Basis of property acquired through involuntary conversion (1) Conversions described in subsection (a)(1) If the property was acquired as the result of a compulsory or involuntary conversion described in subsection (a)(1), the basis shall be the same as in the case of the property so converted (A) decreased in the amount of any money received by the taxpayer which was not expended in accordance with the provisions of law (applicable to the year in which such conversion was made) determining the taxable status of the gain or loss upon such conversion, and (B) increased in the amount of gain or decreased in the amount of loss to the taxpayer recognized upon such conversion under the law applicable to the year in which such conversion was made. (2) Conversions described in subsection (a)(2)

In the case of property purchased by the taxpayer in a transaction described in subsection (a)(2) which resulted in the nonrecognition of any part of the gain realized as the result of a compulsory or involuntary conversion, the basis shall be the cost of such property decreased in the amount of the gain not so recognized; and if the property purchased consists of more than 1 piece of property, the basis determined under this sentence shall be allocated to the purchased properties in proportion to their respective costs. (3) Property held by corporation the stock of which is replacement property (A) In general If the basis of stock in a corporation is decreased under paragraph (2), an amount equal to such decrease shall also be applied to reduce the basis of property held by the corporation at the time the taxpayer acquired control (as defined in subsection (a)(2)(E)) of such corporation. (B) Limitation Subparagraph (A) shall not apply to the extent that it would (but for this subparagraph) require a reduction in the aggregate adjusted bases of the property of the corporation below the taxpayers adjusted basis of the stock in the corporation (determined immediately after such basis is decreased under paragraph (2)). (C) Allocation of basis reduction The decrease required under subparagraph (A) shall be allocated (i) first to property which is similar or related in service or use to the converted property, (ii) second to depreciable property (as defined in section 1017(b)(3)(B)) not described in clause (i), and (iii) then to other property. (D) Special rules (i) Reduction not to exceed adjusted basis of property No reduction in the basis of any property under this paragraph shall exceed the adjusted basis of such property (determined without regard to such reduction). (ii) Allocation of reduction among properties If more than 1 property is described in a clause of subparagraph (C), the reduction under this paragraph shall be allocated among such property in proportion to the adjusted bases of such property (as so determined). (c) Property sold pursuant to reclamation laws For purposes of this subtitle, if property lying within an irrigation project is sold or otherwise disposed of in order to conform to the acreage limitation provisions of Federal reclamation laws, such sale or disposition shall be treated as an involuntary conversion to which this section applies. (d) Livestock destroyed by disease For purposes of this subtitle, if livestock are destroyed by or on account of disease, or are sold or exchanged because of disease, such destruction or such sale or exchange shall be treated as an involuntary conversion to which this section applies. (e) Livestock sold on account of drought, flood, or other weather-related conditions (1) In general For purposes of this subtitle, the sale or exchange of livestock (other than poultry) held by a taxpayer for draft, breeding, or dairy purposes in excess of the number the taxpayer would sell if he followed his usual business practices shall be treated as an involuntary conversion to which this section applies if such livestock are sold or exchanged by the taxpayer solely on account of drought, flood, or other weather-related conditions. (2) Extension of replacement period (A) In general In the case of drought, flood, or other weather-related conditions described in paragraph (1) which result in the area being designated as eligible for assistance by the Federal Government, subsection (a)(2)(B) shall be applied with respect to any converted property by substituting 4 years for 2 years. (B) Further extension by Secretary The Secretary may extend on a regional basis the period for replacement under this section (after the application of subparagraph (A)) for such additional time as the Secretary determines appropriate if the weather-related conditions which resulted in such application continue for more than 3 years. (f) Replacement of livestock with other farm property in certain cases

For purposes of subsection (a), if, because of drought, flood, or other weather-related conditions, or soil contamination or other environmental contamination, it is not feasible for the taxpayer to reinvest the proceeds from compulsorily or involuntarily converted livestock in property similar or related in use to the livestock so converted, other property (including real property in the case of soil contamination or other environmental contamination) used for farming purposes shall be treated as property similar or related in service or use to the livestock so converted. (g) Condemnation of real property held for productive use in trade or business or for investment (1) Special rule For purposes of subsection (a), if real property (not including stock in trade or other property held primarily for sale) held for productive use in trade or business or for investment is (as the result of its seizure, requisition, or condemnation, or threat or imminence thereof) compulsorily or involuntarily converted, property of a like kind to be held either for productive use in trade or business or for investment shall be treated as property similar or related in service or use to the property so converted. (2) Limitations Paragraph (1) shall not apply to the purchase of stock in the acquisition of control of a corporation described in subsection (a)(2)(A). (3) Election to treat outdoor advertising displays as real property (A) In general A taxpayer may elect, at such time and in such manner as the Secretary may prescribe, to treat property which constitutes an outdoor advertising display as real property for purposes of this chapter. The election provided by this subparagraph may not be made with respect to any property with respect to which an election under section 179 (a) (relating to election to expense certain depreciable business assets) is in effect. (B) Election An election made under subparagraph (A) may not be revoked without the consent of the Secretary. (C) Outdoor advertising display For purposes of this paragraph, the term outdoor advertising display means a rigidly assembled sign, display, or device permanently affixed to the ground or permanently attached to a building or other inherently permanent structure constituting, or used for the display of, a commercial or other advertisement to the public. (D) Character of replacement property For purposes of this subsection, an interest in real property purchased as replacement property for a compulsorily or involuntarily converted outdoor advertising display defined in subparagraph (C) (and treated by the taxpayer as real property) shall be considered property of a like kind as the property converted without regard to whether the taxpayers interest in the replacement property is the same kind of interest the taxpayer held in the converted property. (4) Special rule In the case of a compulsory or involuntary conversion described in paragraph (1), subsection (a)(2)(B)(i) shall be applied by substituting 3 years for 2 years. (h) Special rules for property damaged by federally declared disasters (1) Principal residences If the taxpayers principal residence or any of its contents is located in a disaster area and is compulsorily or involuntarily converted as a result of a federally declared disaster (A) Treatment of insurance proceeds (i) Exclusion for unscheduled personal property No gain shall be recognized by reason of the receipt of any insurance proceeds for personal property which was part of such contents and which was not scheduled property for purposes of such insurance. (ii) Other proceeds treated as common fund In the case of any insurance proceeds (not described in clause (i)) for such residence or contents (I) such proceeds shall be treated as received for the conversion of a single item of property, and

(II) any property which is similar or related in service or use to the residence so converted (or contents thereof) shall be treated for purposes of subsection (a)(2) as property similar or related in service or use to such single item of property. (B) Extension of replacement period Subsection (a)(2)(B) shall be applied with respect to any property so converted by substituting 4 years for 2 years. (2) Trade or business and investment property If a taxpayers property held for productive use in a trade or business or for investment [1] located in a disaster area and compulsorily or involuntarily converted as a result of a federally declared disaster, tangible property of a type held for productive use in a trade or business shall be treated for purposes of subsection (a) as property similar or related in service or use to the property so converted. (3) Federally declared disaster; disaster area The terms federally declared disaster and disaster area shall have the respective meaning given such terms by section 165 (h)(3)(C). (4) Principal residence For purposes of this subsection, the term principal residence has the same meaning as when used in section 121, except that such term shall include a residence not treated as a principal residence solely because the taxpayer does not own the residence. (i) Replacement property must be acquired from unrelated person in certain cases (1) In general If the property which is involuntarily converted is held by a taxpayer to which this subsection applies, subsection (a) shall not apply if the replacement property or stock is acquired from a related person. The preceding sentence shall not apply to the extent that the related person acquired the replacement property or stock from an unrelated person during the period applicable under subsection (a)(2)(B). (2) Taxpayers to which subsection applies This subsection shall apply to (A) a C corporation, (B) a partnership in which 1 or more C corporations own, directly or indirectly (determined in accordance with section 707 (b)(3)), more than 50 percent of the capital interest, or profits interest, in such partnership at the time of the involuntary conversion, and (C) any other taxpayer if, with respect to property which is involuntarily converted during the taxable year, the aggregate of the amount of realized gain on such property on which there is realized gain exceeds $100,000. In the case of a partnership, subparagraph (C) shall apply with respect to the partnership and with respect to each partner. A similar rule shall apply in the case of an S corporation and its shareholders. (3) Related person For purposes of this subsection, a person is related to another person if the person bears a relationship to the other person described in section267 (b) or 707 (b)(1). (j) Sales or exchanges to implement microwave relocation policy (1) In general For purposes of this subtitle, if a taxpayer elects the application of this subsection to a qualified sale or exchange, such sale or exchange shall be treated as an involuntary conversion to which this section applies. (2) Qualified sale or exchange For purposes of paragraph (1), the term qualified sale or exchange means a sale or exchange before January 1, 2000, which is certified by the Federal Communications Commission as having been made by a taxpayer in connection with the relocation of the taxpayer from the 18501990MHz spectrum by reason of the Federal Communications Commissions reallocation of that spectrum for use for personal communications services. The Commission shall transmit copies of certifications under this paragraph to the Secretary. (k) Sales or exchanges under certain hazard mitigation programs For purposes of this subtitle, if property is sold or otherwise transferred to the Federal Government, a State or local government, or an Indian tribal government to implement hazard mitigation under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (as in effect on the date of the enactment of this subsection) or the National Flood Insurance

Act (as in effect on such date), such sale or transfer shall be treated as an involuntary conversion to which this section applies. (l) Cross references (1) For determination of the period for which the taxpayer has held property involuntarily converted, see section 1223. (2) For treatment of gains from involuntary conversions as capital gains in certain cases, see section 1231 (a). (3) For exclusion from gross income of gain from involuntary conversion of principal residence, see section 121.

[1] So in original. Probably should be followed by is.

1034. Repealed. Pub. L. 10534, title III, 312(b), Aug. 5, 1997, 111 Stat. 839]
How Current is This?

Section, acts Aug. 16, 1954, ch. 736, 68A Stat. 306; Sept. 2, 1958, Pub. L. 85866, title I, 46(b), 72 Stat. 1642; Feb. 26, 1964, Pub. L. 88272, title II, 206(b)(4), 78 Stat. 40; Jan. 2, 1975, Pub. L. 93597, 6(a), 88 Stat. 1953; Mar. 29, 1975, Pub. L. 9412, title II, 207, 89 Stat. 32; Oct. 4, 1976, Pub. L. 94455, title XIX, 1901(a)(129), 1906 (b)(13) (A), 90 Stat. 1785, 1834; May 23, 1977,Pub. L. 9530, title I, 102(b)(13), 91 Stat. 138; Nov. 6, 1978, Pub. L. 95600, title IV, 404(c)(5), 405 (a)(c)(1), 92 Stat. 2870, 2871; Nov. 8, 1978, Pub. L. 95615, title II, 206, 92 Stat. 3107; Aug. 13, 1981, Pub. L. 9734, title I, 112(b)(4), 122 (a), (b), 95 Stat. 195, 197; July 18, 1984, Pub. L. 98369, div. A, title X, 1053(a), 98 Stat. 1045; Oct. 22, 1986, Pub. L. 99514, title XVIII, 1878(g), 100 Stat. 2904; Nov. 10, 1988, Pub. L. 100647, title VI, 6002(a),102 Stat. 3684, related to rollover of gain on sale of principal residence.

1035. Certain exchanges of insurance policies


How Current is This?

(a) General rules No gain or loss shall be recognized on the exchange of (1) a contract of life insurance for another contract of life insurance or for an endowment or annuity contract or for a qualified long-term care insurance contract; or [1] (2) a contract of endowment insurance (A) for another contract of endowment insurance which provides for regular payments beginning at a date not later than the date payments would have begun under the contract exchanged, or (B) for an annuity contract, or (C) for a qualified long-term care insurance contract; (3) an annuity contract for an annuity contract or for a qualified long-term care insurance contract; or (4) a qualified long-term care insurance contract for a qualified long-term care insurance contract. (b) Definitions For the purpose of this section (1) Endowment contract

A contract of endowment insurance is a contract with an insurance company which depends in part on the life expectancy of the insured, but which may be payable in full in a single payment during his life. (2) Annuity contract An annuity contract is a contract to which paragraph (1) applies but which may be payable during the life of the annuitant only in installments. For purposes of the preceding sentence, a contract shall not fail to be treated as an annuity contract solely because a qualified longterm care insurance contract is a part of or a rider on such contract. (3) Life insurance contract A contract of life insurance is a contract to which paragraph (1) applies but which is not ordinarily payable in full during the life of the insured. For purposes of the preceding sentence, a contract shall not fail to be treated as a life insurance contract solely because a qualified long-term care insurance contract is a part of or a rider on such contract. (c) Exchanges involving foreign persons To the extent provided in regulations, subsection (a) shall not apply to any exchange having the effect of transferring property to any person other than a United States person. (d) Cross references (1) For rules relating to recognition of gain or loss where an exchange is not solely in kind, see subsections (b) and (c) of section 1031. (2) For rules relating to the basis of property acquired in an exchange described in subsection (a), see subsection (d) of section 1031.

[1] So in original. The word or probably should not appear.

1036. Stock for stock of same corporation


How Current is This?

(a) General rule No gain or loss shall be recognized if common stock in a corporation is exchanged solely for common stock in the same corporation, or if preferred stock in a corporation is exchanged solely for preferred stock in the same corporation. (b) Nonqualified preferred stock not treated as stock For purposes of this section, nonqualified preferred stock (as defined in section 351 (g)(2)) shall be treated as property other than stock. (c) Cross references (1) For rules relating to recognition of gain or loss where an exchange is not solely in kind, see subsections (b) and (c) of section 1031. (2) For rules relating to the basis of property acquired in an exchange described in subsection (a), see subsection (d) of section 1031.

1037. Certain exchanges of United States obligations


How Current is This?

(a) General rule When so provided by regulations promulgated by the Secretary in connection with the issue of obligations of the United States, no gain or loss shall be recognized on the surrender to the United States of obligations of the United States issued under chapter 31 of title 31 in exchange solely for other obligations issued under such chapter. (b) Application of original issue discount rules

(1) Exchanges involving obligations issued at a discount In any case in which gain has been realized but not recognized because of the provisions of subsection (a) (or so much of section 1031 (b) as relates to subsection (a) of this section), to the extent such gain is later recognized by reason of a disposition or redemption of an obligation received in an exchange subject to such provisions, the first sentence of section 1271 (c)(2) shall apply to such gain as though the obligation disposed of or redeemed were the obligation surrendered to the Government in the exchange rather than the obligation actually disposed of or redeemed. For purposes of this paragraph and subpart A of part V of subchapter P, if the obligation surrendered in the exchange is a nontransferable obligation described in subsection (a) or (c) of section454 (A) the aggregate amount considered, with respect to the obligation surrendered, as ordinary income shall not exceed the difference between the issue price and the stated redemption price which applies at the time of the exchange, and (B) the issue price of the obligation received in the exchange shall be considered to be the stated redemption price of the obligation surrendered in the exchange, increased by the amount of other consideration (if any) paid to the United States as a part of the exchange. (2) Exchanges of transferable obligations issued at not less than par In any case in which subsection (a) (or so much of section 1031 (b) or (c) as relates to subsection (a) of this section) has applied to the exchange of a transferable obligation which was issued at not less than par for another transferable obligation, the issue price of the obligation received from the Government in the exchange shall be considered for purposes of applying subpart A of part V of subchapter P to be the same as the issue price of the obligation surrendered to the Government in the exchange, increased by the amount of other consideration (if any) paid to the United States as a part of the exchange. (c) Cross references (1) For rules relating to the recognition of gain or loss in a case where subsection (a) would apply except for the fact that the exchange was not made solely for other obligations of the United States, see subsections (b) and (c) of section 1031. (2) For rules relating to the basis of obligations of the United States acquired in an exchange for other obligations described in subsection (a), see subsection (d) of section 1031.

1038. Certain reacquisitions of real property


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(a) General rule If (1) a sale of real property gives rise to indebtedness to the seller which is secured by the real property sold, and (2) the seller of such property reacquires such property in partial or full satisfaction of such indebtedness, then, except as provided in subsections (b) and (d), no gain or loss shall result to the seller from such reacquisition, and no debt shall become worthless or partially worthless as a result of such reacquisition. (b) Amount of gain resulting (1) In general In the case of a reacquisition of real property to which subsection (a) applies, gain shall result from such reacquisition to the extent that (A) the amount of money and the fair market value of other property (other than obligations of the purchaser) received, prior to such reacquisition, with respect to the sale of such property, exceeds (B) the amount of the gain on the sale of such property returned as income for periods prior to such reacquisition. (2) Limitation The amount of gain determined under paragraph (1) resulting from a reacquisition during any taxable year beginning after the date of the enactment of this section shall not exceed the

amount by which the price at which the real property was sold exceeded its adjusted basis, reduced by the sum of (A) the amount of the gain on the sale of such property returned as income for periods prior to the reacquisition of such property, and (B) the amount of money and the fair market value of other property (other than obligations of the purchaser received with respect to the sale of such property) paid or transferred by the seller in connection with the reacquisition of such property. For purposes of this paragraph, the price at which real property is sold is the gross sales price reduced by the selling commissions, legal fees, and other expenses incident to the sale of such property which are properly taken into account in determining gain or loss on such sale. (3) Gain recognized Except as provided in this section, the gain determined under this subsection resulting from a reacquisition to which subsection (a) applies shall be recognized, notwithstanding any other provision of this subtitle. (c) Basis of reacquired real property If subsection (a) applies to the reacquisition of any real property, the basis of such property upon such reacquisition shall be the adjusted basis of the indebtedness to the seller secured by such property (determined as of the date of reacquisition), increased by the sum of (1) the amount of the gain determined under subsection (b) resulting from such reacquisition, and (2) the amount described in subsection (b)(2)(B). If any indebtedness to the seller secured by such property is not discharged upon the reacquisition of such property, the basis of such indebtedness shall be zero. (d) Indebtedness treated as worthless prior to reacquisition If, prior to a reacquisition of real property to which subsection (a) applies, the seller has treated indebtedness secured by such property as having become worthless or partially worthless (1) such seller shall be considered as receiving, upon the reacquisition of such property, an amount equal to the amount of such indebtedness treated by him as having become worthless, and (2) the adjusted basis of such indebtedness shall be increased (as of the date of reacquisition) by an amount equal to the amount so considered as received by such seller. (e) Principal residences If (1) subsection (a) applies to a reacquisition of real property with respect to the sale of which gain was not recognized under section 121 (relating to gain on sale of principal residence); and (2) within 1 year after the date of the reacquisition of such property by the seller, such property is resold by him, then, under regulations prescribed by the Secretary, subsections (b), (c), and (d) of this section shall not apply to the reacquisition of such property and, for purposes of applying section 121, the resale of such property shall be treated as a part of the transaction constituting the original sale of such property. [(f) Repealed. Pub. L. 104188, title I, 1616(b)(12), Aug. 20, 1996, 110 Stat. 1857] (g) Acquisition by estate, etc., of seller Under regulations prescribed by the Secretary, if an installment obligation is indebtedness to the seller which is described in subsection (a), and if such obligation is, in the hands of the taxpayer, an obligation with respect to which section 691 (a)(4)(B) applies, then (1) for purposes of subsection (a), acquisition of real property by the taxpayer shall be treated as reacquisition by the seller, and (2) the basis of the real property acquired by the taxpayer shall be increased by an amount equal to the deduction under section 691 (c) which would (but for this subsection) have been allowable to the taxpayer with respect to the gain on the exchange of the obligation for the real property.

1039. Repealed. Pub. L. 101508, title XI, 11801(a)(33), Nov. 5, 1990, 104 Stat. 1388 521]
How Current is This?

Section, added Pub. L. 91172, title IX, 910(a), Dec. 30, 1969, 83 Stat. 718; amended Pub. L. 94455, title XIX, 1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1834, related to the recognition of gain on certain sales of low-income housing projects.

1040. Use of appreciated carryover basis property to satisfy pecuniary bequest


How Current is This?

(a) In general If the executor of the estate of any decedent satisfies the right of any person to receive a pecuniary bequest with appreciated property, then gain on such exchange shall be recognized to the estate only to the extent that, on the date of such exchange, the fair market value of such property exceeds such value on the date of death. (b) Similar rule for certain trusts To the extent provided in regulations prescribed by the Secretary, a rule similar to the rule provided in subsection (a) shall apply where (1) by reason of the death of the decedent, a person has a right to receive from a trust a specific dollar amount which is the equivalent of a pecuniary bequest, and (2) the trustee of a trust satisfies such right with property. (c) Basis of property acquired in exchange described in subsection (a) or (b) The basis of property acquired in an exchange with respect to which gain realized is not recognized by reason of subsection (a) or (b) shall be the basis of such property immediately before the exchange increased by the amount of the gain recognized to the estate or trust on the exchange.

1041. Transfers of property between spouses or incident to divorce


How Current is This?

(a) General rule No gain or loss shall be recognized on a transfer of property from an individual to (or in trust for the benefit of) (1) a spouse, or (2) a former spouse, but only if the transfer is incident to the divorce. (b) Transfer treated as gift; transferee has transferors basis In the case of any transfer of property described in subsection (a) (1) for purposes of this subtitle, the property shall be treated as acquired by the transferee by gift, and (2) the basis of the transferee in the property shall be the adjusted basis of the transferor. (c) Incident to divorce For purposes of subsection (a)(2), a transfer of property is incident to the divorce if such transfer (1) occurs within 1 year after the date on which the marriage ceases, or (2) is related to the cessation of the marriage.

(d) Special rule where spouse is nonresident alien Subsection (a) shall not apply if the spouse (or former spouse) of the individual making the transfer is a nonresident alien. (e) Transfers in trust where liability exceeds basis Subsection (a) shall not apply to the transfer of property in trust to the extent that (1) the sum of the amount of the liabilities assumed, plus the amount of the liabilities to which the property is subject, exceeds (2) the total of the adjusted basis of the property transferred. Proper adjustment shall be made under subsection (b) in the basis of the transferee in such property to take into account gain recognized by reason of the preceding sentence.

1042. Sales of stock to employee stock ownership plans or certain cooperatives


How Current is This?

(a) Nonrecognition of gain If (1) the taxpayer or executor elects in such form as the Secretary may prescribe the application of this section with respect to any sale of qualified securities, (2) the taxpayer purchases qualified replacement property within the replacement period, and (3) the requirements of subsection (b) are met with respect to such sale, then the gain (if any) on such sale which would be recognized as long-term capital gain shall be recognized only to the extent that the amount realized on such sale exceeds the cost to the taxpayer of such qualified replacement property. (b) Requirements to qualify for nonrecognition A sale of qualified securities meets the requirements of this subsection if (1) Sale to employee organizations The qualified securities are sold to (A) an employee stock ownership plan (as defined in section 4975(e)(7)), or (B) an eligible worker-owned cooperative. (2) Plan must hold 30 percent of stock after sale The plan or cooperative referred to in paragraph (1) owns (after application of section 318 (a)(4)), immediately after the sale, at least 30 percent of (A) each class of outstanding stock of the corporation (other than stock described in section 1504 (a)(4)) which issued the qualified securities, or (B) the total value of all outstanding stock of the corporation (other than stock described in section 1504 (a)(4)). (3) Written statement required (A) In general The taxpayer files with the Secretary the written statement described in subparagraph (B). (B) Statement A statement is described in this subparagraph if it is a verified written statement of (i) the employer whose employees are covered by the plan described in paragraph (1), or (ii) any authorized officer of the cooperative described in paragraph (l), consenting to the application of sections 4978 and 4979A with respect to such employer or cooperative. (4) 3-year holding period The taxpayers holding period with respect to the qualified securities is at least 3 years (determined as of the time of the sale). (c) Definitions; special rules For purposes of this section (1) Qualified securities

The term qualified securities means employer securities (as defined in section 409 (l)) which (A) are issued by a domestic C corporation that has no stock outstanding that is readily tradable on an established securities market, and (B) were not received by the taxpayer in (i) a distribution from a plan described in section 401 (a), or (ii) a transfer pursuant to an option or other right to acquire stock to which section 83, 422, or 423 applied (or to which section422 or 424 (as in effect on the day before the date of the enactment of the Revenue Reconciliation Act of 1990) applied). (2) Eligible worker-owned cooperative The term eligible worker-owned cooperative means any organization (A) to which part I of subchapter T applies, (B) a majority of the membership of which is composed of employees of such organization, (C) a majority of the voting stock of which is owned by members, (D) a majority of the board of directors of which is elected by the members on the basis of 1 person 1 vote, and (E) a majority of the allocated earnings and losses of which are allocated to members on the basis of (i) patronage, (ii) capital contributions, or (iii) some combination of clauses (i) and (ii). (3) Replacement period The term replacement period means the period which begins 3 months before the date on which the sale of qualified securities occurs and which ends 12 months after the date of such sale. (4) Qualified replacement property (A) In general The term qualified replacement property means any security issued by a domestic operating corporation which (i) did not, for the taxable year preceding the taxable year in which such security was purchased, have passive investment income (as defined in section 1362 (d)(3)(C)) in excess of 25 percent of the gross receipts of such corporation for such preceding taxable year, and (ii) is not the corporation which issued the qualified securities which such security is replacing or a member of the same controlled group of corporations (within the meaning of section1563 (a)(1)) as such corporation. For purposes of clause (i), income which is described in section 954 (c)(3) (as in effect immediately before the Tax Reform Act of 1986) shall not be treated as passive investment income. (B) Operating corporation For purposes of this paragraph (i) In general The term operating corporation means a corporation more than 50 percent of the assets of which were, at the time the security was purchased or before the close of the replacement period, used in the active conduct of the trade or business. (ii) Financial institutions and insurance companies The term operating corporation shall include (I) any financial institution described in section 581, and (II) an insurance company subject to tax under subchapter L. (C) Controlling and controlled corporations treated as 1 corporation (i) In general For purposes of applying this paragraph, if (I) the corporation issuing the security owns stock representing control of 1 or more other corporations, (II) 1 or more other corporations own stock representing control of the corporation issuing the security, or (III) both, then all such corporations shall be treated as 1 corporation. (ii) Control For purposes of clause (i), the term control has the meaning given such term by section 304 (c). In determining control, there shall be disregarded any qualified replacement property of the taxpayer with respect to the section 1042 sale being tested.

(D) Security defined For purposes of this paragraph, the term security has the meaning given such term by section 165 (g)(2), except that such term shall not include any security issued by a government or political subdivision thereof. (5) Securities sold by underwriter No sale of securities by an underwriter to an employee stock ownership plan or eligible worker-owned cooperative in the ordinary course of his trade or business as an underwriter, whether or not guaranteed, shall be treated as a sale for purposes of subsection (a). (6) Time for filing election An election under subsection (a) shall be filed not later than the last day prescribed by law (including extensions thereof) for filing the return of tax imposed by this chapter for the taxable year in which the sale occurs. (7) Section not to apply to gain of C corporation Subsection (a) shall not apply to any gain on the sale of any qualified securities which is includible in the gross income of any C corporation. (d) Basis of qualified replacement property The basis of the taxpayer in qualified replacement property purchased by the taxpayer during the replacement period shall be reduced by the amount of gain not recognized by reason of such purchase and the application of subsection (a). If more than one item of qualified replacement property is purchased, the basis of each of such items shall be reduced by an amount determined by multiplying the total gain not recognized by reason of such purchase and the application of subsection (a) by a fraction (1) the numerator of which is the cost of such item of property, and (2) the denominator of which is the total cost of all such items of property. Any reduction in basis under this subsection shall not be taken into account for purposes of section 1278 (a)(2)(A)(ii) (relating to definition of market discount). (e) Recapture of gain on disposition of qualified replacement property (1) In general If a taxpayer disposes of any qualified replacement property, then, notwithstanding any other provision of this title, gain (if any) shall be recognized to the extent of the gain which was not recognized under subsection (a) by reason of the acquisition by such taxpayer of such qualified replacement property. (2) Special rule for corporations controlled by the taxpayer If (A) a corporation issuing qualified replacement property disposes of a substantial portion of its assets other than in the ordinary course of its trade or business, and (B) any taxpayer owning stock representing control (within the meaning of section 304(c)) of such corporation at the time of such disposition holds any qualified replacement property of such corporation at such time, then the taxpayer shall be treated as having disposed of such qualified replacement property at such time. (3) Recapture not to apply in certain cases Paragraph (1) shall not apply to any transfer of qualified replacement property (A) in any reorganization (within the meaning of section 368) unless the person making the election under subsection (a)(1) owns stock representing control in the acquiring or acquired corporation and such property is substituted basis property in the hands of the transferee, (B) by reason of the death of the person making such election, (C) by gift, or (D) in any transaction to which section 1042 (a) applies. (f) Statute of limitations If any gain is realized by the taxpayer on the sale or exchange of any qualified securities and there is in effect an election under subsection (a) with respect to such gain, then (1) the statutory period for the assessment of any deficiency with respect to such gain shall not expire before the expiration of 3 years from the date the Secretary is notified by the taxpayer (in such manner as the Secretary may by regulations prescribe) of (A) the taxpayers cost of purchasing qualified replacement property which the taxpayer claims results in nonrecognition of any part of such gain,

(B) the taxpayers intention not to purchase qualified replacement property within the replacement period, or (C) a failure to make such purchase within the replacement period, and (2) such deficiency may be assessed before the expiration of such 3-year period notwithstanding the provisions of any other law or rule of law which would otherwise prevent such assessment. (g) Application of section to sales of stock in agricultural refiners and processors to eligible farm cooperatives (1) In general This section shall apply to the sale of stock of a qualified refiner or processor to an eligible farmers cooperative. (2) Qualified refiner or processor For purposes of this subsection, the term qualified refiner or processor means a domestic corporation (A) substantially all of the activities of which consist of the active conduct of the trade or business of refining or processing agricultural or horticultural products, and (B) which, during the 1-year period ending on the date of the sale, purchases more than one-half of such products to be refined or processed from (i) farmers who make up the eligible farmers cooperative which is purchasing stock in the corporation in a transaction to which this subsection is to apply, or (ii) such cooperative. (3) Eligible farmers cooperative For purposes of this section, the term eligible farmers cooperative means an organization to which part I of subchapter T applies and which is engaged in the marketing of agricultural or horticultural products. (4) Special rules In applying this section to a sale to which paragraph (1) applies (A) the eligible farmers cooperative shall be treated in the same manner as a cooperative described in subsection (b)(1)(B), (B) subsection (b)(2) shall be applied by substituting 100 percent for 30 percent each place it appears, (C) the determination as to whether any stock in the domestic corporation is a qualified security shall be made without regard to whether the stock is an employer security or to subsection (c)(1)(A), and (D) paragraphs (2)(D) and (7) of subsection (c) shall not apply.

1043. Sale of property to comply with conflictof-interest requirements


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(a) Nonrecognition of gain If an eligible person sells any property pursuant to a certificate of divestiture, at the election of the taxpayer, gain from such sale shall be recognized only to the extent that the amount realized on such sale exceeds the cost (to the extent not previously taken into account under this subsection) of any permitted property purchased by the taxpayer during the 60-day period beginning on the date of such sale. (b) Definitions For purposes of this section (1) Eligible person The term eligible person means (A) an officer or employee of the executive branch, or a judicial officer, of the Federal Government, but does not mean a special Government employee as defined in section 202 of title 18, United States Code, and

(B) any spouse or minor or dependent child whose ownership of any property is attributable under any statute, regulation, rule, judicial canon, or executive order referred to in paragraph (2) to a person referred to in subparagraph (A). (2) Certificate of divestiture The term certificate of divestiture means any written determination (A) that states that divestiture of specific property is reasonably necessary to comply with any Federal conflict of interest statute, regulation, rule, judicial canon, or executive order (including section208 of title 18, United States Code), or requested by a congressional committee as a condition of confirmation, (B) that has been issued by the President or the Director of the Office of Government Ethics, in the case of executive branch officers or employees, or by the Judicial Conference of the United States (or its designee), in the case of judicial officers, and (C) that identifies the specific property to be divested. (3) Permitted property The term permitted property means any obligation of the United States or any diversified investment fund approved by regulations issued by the Office of Government Ethics. (4) Purchase The taxpayer shall be considered to have purchased any permitted property if, but for subsection (c), the unadjusted basis of such property would be its cost within the meaning of section 1012. (5) Special rule for trusts For purposes of this section, the trustee of a trust shall be treated as an eligible person with respect to property which is held in the trust if (A) any person referred to in paragraph (1)(A) has a beneficial interest in the principal or income of the trust, or (B) any person referred to in paragraph (1)(B) has a beneficial interest in the principal or income of the trust and such interest is attributable under any statute, regulation, rule, judicial canon, or executive order referred to in paragraph (2) to a person referred to in paragraph (1)(A). (6) Judicial officer The term judicial officer means the Chief Justice of the United States, the Associate Justices of the Supreme Court, and the judges of the United States courts of appeals, United States district courts, including the district courts in Guam, the Northern Mariana Islands, and the Virgin Islands, Court of Appeals for the Federal Circuit, Court of International Trade, Tax Court, Court of Federal Claims, Court of Appeals for Veterans Claims, United States Court of Appeals for the Armed Forces, and any court created by Act of Congress, the judges of which are entitled to hold office during good behavior. (c) Basis adjustments If gain from the sale of any property is not recognized by reason of subsection (a), such gain shall be applied to reduce (in the order acquired) the basis for determining gain or loss of any permitted property which is purchased by the taxpayer during the 60-day period described in subsection (a).

1044. Rollover of publicly traded securities gain into specialized small business investment companies
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(a) Nonrecognition of gain In the case of the sale of any publicly traded securities with respect to which the taxpayer elects the application of this section, gain from such sale shall be recognized only to the extent that the amount realized on such sale exceeds

(1) the cost of any common stock or partnership interest in a specialized small business investment company purchased by the taxpayer during the 60-day period beginning on the date of such sale, reduced by (2) any portion of such cost previously taken into account under this section. This section shall not apply to any gain which is treated as ordinary income for purposes of this subtitle. (b) Limitations (1) Limitation on individuals In the case of an individual, the amount of gain which may be excluded under subsection (a) for any taxable year shall not exceed the lesser of (A) $50,000, or (B) $500,000, reduced by the amount of gain excluded under subsection (a) for all preceding taxable years. (2) Limitation on C corporations In the case of a C corporation, the amount of gain which may be excluded under subsection (a) for any taxable year shall not exceed the lesser of (A) $250,000, or (B) $1,000,000, reduced by the amount of gain excluded under subsection (a) for all preceding taxable years. (3) Special rules for married individuals For purposes of this subsection (A) Separate returns In the case of a separate return by a married individual, paragraph (1) shall be applied by substituting $25,000 for $50,000 and $250,000 for $500,000. (B) Allocation of gain In the case of any joint return, the amount of gain excluded under subsection (a) for any taxable year shall be allocated equally between the spouses for purposes of applying this subsection to subsequent taxable years. (C) Marital status For purposes of this subsection, marital status shall be determined under section 7703. (4) Special rules for C corporation For purposes of this subsection (A) all corporations which are members of the same controlled group of corporations (within the meaning of section 52 (a)) shall be treated as 1 taxpayer, and (B) any gain excluded under subsection (a) by a predecessor of any C corporation shall be treated as having been excluded by such C corporation. (c) Definitions and special rules For purposes of this section (1) Publicly traded securities The term publicly traded securities means securities which are traded on an established securities market. (2) Purchase The taxpayer shall be considered to have purchased any property if, but for subsection (d), the unadjusted basis of such property would be its cost within the meaning of section 1012. (3) Specialized small business investment company The term specialized small business investment company means any partnership or corporation which is licensed by the Small Business Administration under section 301(d) of the Small Business Investment Act of 1958 (as in effect on May 13, 1993). (4) Certain entities not eligible This section shall not apply to any estate, trust, partnership, or S corporation. (d) Basis adjustments If gain from any sale is not recognized by reason of subsection (a), such gain shall be applied to reduce (in the order acquired) the basis for determining gain or loss of any common stock or partnership interest in any specialized small business investment company which is purchased by the taxpayer during the 60-day period described in subsection (a). This subsection shall not apply for purposes of section 1202.

1045. Rollover of gain from qualified small business stock to another qualified small business stock
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(a) Nonrecognition of gain In the case of any sale of qualified small business stock held by a taxpayer other than a corporation for more than 6 months and with respect to which such taxpayer elects the application of this section, gain from such sale shall be recognized only to the extent that the amount realized on such sale exceeds (1) the cost of any qualified small business stock purchased by the taxpayer during the 60day period beginning on the date of such sale, reduced by (2) any portion of such cost previously taken into account under this section. This section shall not apply to any gain which is treated as ordinary income for purposes of this title. (b) Definitions and special rules For purposes of this section (1) Qualified small business stock The term qualified small business stock has the meaning given such term by section 1202 (c). (2) Purchase A taxpayer shall be treated as having purchased any property if, but for paragraph (3), the unadjusted basis of such property in the hands of the taxpayer would be its cost (within the meaning of section 1012). (3) Basis adjustments If gain from any sale is not recognized by reason of subsection (a), such gain shall be applied to reduce (in the order acquired) the basis for determining gain or loss of any qualified small business stock which is purchased by the taxpayer during the 60-day period described in subsection (a). (4) Holding period For purposes of determining whether the nonrecognition of gain under subsection (a) applies to stock which is sold (A) the taxpayers holding period for such stock and the stock referred to in subsection (a) (1) shall be determined without regard to section 1223, and (B) only the first 6 months of the taxpayers holding period for the stock referred to in subsection (a)(1) shall be taken into account for purposes of applying section 1202 (c)(2). (5) Certain rules to apply Rules similar to the rules of subsections (f), (g), (h), (i), (j), and (k) of section 1202 shall apply.

PART IVSPECIAL RULES


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1051. Property acquired during affiliation

1052. Basis established by the Revenue Act of 1932 or 1934 or by the Internal Revenue Code of 1939 1053. Property acquired before March 1, 1913 1054. Certain stock of Federal National Mortgage Association

1055. Redeemable ground rents [ 1056. Repealed.] [ 1057. Repealed.] 1058. Transfers of securities under certain agreements

1059. Corporate shareholders basis in stock reduced by nontaxed portion of extraordinary dividends 1059A. Limitation on taxpayers basis or inventory cost in property imported from related persons 1060. Special allocation rules for certain asset acquisitions 1061. Cross references

1051. Property acquired during affiliation


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In the case of property acquired by a corporation, during a period of affiliation, from a corporation with which it was affiliated, the basis of such property, after such period of affiliation, shall be determined, in accordance with regulations prescribed by the Secretary, without regard to inter-company transactions in respect of which gain or loss was not recognized. For purposes of this section, the term period of affiliation means the period during which such corporations were affiliated (determined in accordance with the law applicable thereto) but does not include any taxable year beginning on or after January 1, 1922, unless a consolidated return was made, nor any taxable year after the taxable year 1928.

1052. Basis established by the Revenue Act of 1932 or 1934 or by the Internal Revenue Code of 1939
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(a) Revenue Act of 1932 If the property was acquired, after February 28, 1913, in any taxable year beginning before January 1, 1934, and the basis thereof, for purposes of the Revenue Act of 1932 was prescribed by section 113(a)(6), (7), or (9) of such Act (47 Stat. 199), then for purposes of this subtitle the basis shall be the same as the basis therein prescribed in the Revenue Act of 1932. (b) Revenue Act of 1934 If the property was acquired, after February 28, 1913, in any taxable year beginning before January 1, 1936, and the basis thereof, for purposes of the Revenue Act of 1934, was prescribed by section 113(a)(6), (7), or (8) of such Act (48 Stat. 706), then for purposes of this subtitle the basis shall be the same as the basis therein prescribed in the Revenue Act of 1934. (c) Internal Revenue Code of 1939

If the property was acquired, after February 28, 1913, in a transaction to which the Internal Revenue Code of 1939 applied, and the basis thereof, for purposes of the Internal Revenue Code of 1939, was prescribed by section 113(a)(6), (7), (8), (13), (15), (18), (19), or (23) of such code, then for purposes of this subtitle the basis shall be the same as the basis therein prescribed in the Internal Revenue Code of 1939.

1053. Property acquired before March 1, 1913


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In the case of property acquired before March 1, 1913, if the basis otherwise determined under this subtitle, adjusted (for the period before March 1, 1913) as provided in section 1016, is less than the fair market value of the property as of March 1, 1913, then the basis for determining gain shall be such fair market value. In determining the fair market value of stock in a corporation as of March 1, 1913, due regard shall be given to the fair market value of the assets of the corporation as of that date.

1054. Certain stock of Federal National Mortgage Association


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In the case of a share of stock issued pursuant to section 303(c) of the Federal National Mortgage Association Charter Act (12 U.S.C., sec. 1718), the basis of such share in the hands of the initial holder shall be an amount equal to the capital contributions evidenced by such share reduced by the amount (if any) required by section 162 (d) to be treated (with respect to such share) as ordinary and necessary expenses paid or incurred in carrying on a trade or business.

1055. Redeemable ground rents


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(a) Character For purposes of this subtitle (1) a redeemable ground rent shall be treated as being in the nature of a mortgage, and (2) real property held subject to liabilities under a redeemable ground rent shall be treated as held subject to liabilities under a mortgage. (b) Application of subsection (a) (1) In general Subsection (a) shall take effect on the day after the date of the enactment of this section and shall apply with respect to taxable years ending after such date of enactment. (2) Basis of holder In determining the basis of real property held subject to liabilities under a redeemable ground rent, subsection (a) shall apply whether such real property was acquired before or after the enactment of this section. (3) Basis of reserved redeemable ground rent In the case of a redeemable ground rent reserved or created on or before the date of the enactment of this section in connection with a transfer of the right to hold real property subject to liabilities under such ground rent, the basis of such ground rent after such date in the hands of the person who reserved or created the ground rent shall be the amount taken

into account in respect of such ground rent for Federal income tax purposes as consideration for the disposition of such real property. If no such amount was taken into account, such basis shall be determined as if this section had not been enacted. (c) Redeemable ground rent defined For purposes of this subtitle, the term redeemable ground rent means only a ground rent with respect to which (1) there is a lease of land which is assignable by the lessee without the consent of the lessor and which (together with periods for which the lease may be renewed at the option of the lessee) is for a term in excess of 15 years, (2) the leaseholder has a present or future right to terminate, and to acquire the entire interest of the lessor in the land, by payment of a determined or determinable amount, which right exists by virtue of State or local law and not because of any private agreement or privately created condition, and (3) the lessors interest in the land is primarily a security interest to protect the rental payments to which the lessor is entitled under the lease. (d) Cross reference For treatment of rentals under redeemable ground rents as interest, see section 163 (c).

1056. Repealed. Pub. L. 108357, title VIII, 886(b)(1)(A), Oct. 22, 2004, 118 Stat. 1641]
How Current is This?

Section, added Pub. L. 94455, title II, 212(a)(1), Oct. 4, 1976, 90 Stat. 1545; amended Pub. L. 99514, title VI, 631(e)(13), Oct. 22, 1986, 100 Stat. 2275, related to basis limitation for player contracts transferred in connection with the sale of a franchise. A prior section 1056 was renumbered section 1061 of this title.

1057. Repealed. Pub. L. 10534, title XI, 1131(c)(2), Aug. 5, 1997, 111 Stat. 980]
How Current is This?

Section, added Pub. L. 94455, title X, 1015(c), Oct. 4, 1976, 90 Stat. 1618, related to election to treat transfer to foreign trust, etc., as taxable exchange. A prior section 1057 was renumbered section 1061 of this title.

1058. Transfers of securities under certain agreements


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(a) General rule In the case of a taxpayer who transfers securities (as defined in section 1236(c)) pursuant to an agreement which meets the requirements of subsection (b), no gain or loss shall be recognized on the exchange of such securities by the taxpayer for an obligation under such agreement, or on the exchange of rights under such agreement by that taxpayer for securities identical to the securities transferred by that taxpayer. (b) Agreement requirements

In order to meet the requirements of this subsection, an agreement shall (1) provide for the return to the transferor of securities identical to the securities transferred; (2) require that payments shall be made to the transferor of amounts equivalent to all interest, dividends, and other distributions which the owner of the securities is entitled to receive during the period beginning with the transfer of the securities by the transferor and ending with the transfer of identical securities back to the transferor; (3) not reduce the risk of loss or opportunity for gain of the transferor of the securities in the securities transferred; and (4) meet such other requirements as the Secretary may by regulation prescribe. (c) Basis Property acquired by a taxpayer described in subsection (a), in a transaction described in that subsection, shall have the same basis as the property transferred by that taxpayer.

1059. Corporate shareholders basis in stock reduced by nontaxed portion of extraordinary dividends
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(a) General rule If any corporation receives any extraordinary dividend with respect to any share of stock and such corporation has not held such stock for more than 2 years before the dividend announcement date (1) Reduction in basis The basis of such corporation in such stock shall be reduced (but not below zero) by the nontaxed portion of such dividends. (2) Amounts in excess of basis If the nontaxed portion of such dividends exceeds such basis, such excess shall be treated as gain from the sale or exchange of such stock for the taxable year in which the extraordinary dividend is received. (b) Nontaxed portion For purposes of this section (1) In general The nontaxed portion of any dividend is the excess (if any) of (A) the amount of such dividend, over (B) the taxable portion of such dividend. (2) Taxable portion The taxable portion of any dividend is (A) the portion of such dividend includible in gross income, reduced by (B) the amount of any deduction allowable with respect to such dividend under section 243, 244, or 245. (c) Extraordinary dividend defined For purposes of this section (1) In general The term extraordinary dividend means any dividend with respect to a share of stock if the amount of such dividend equals or exceeds the threshold percentage of the taxpayers adjusted basis in such share of stock. (2) Threshold percentage The term threshold percentage means (A) 5 percent in the case of stock which is preferred as to dividends, and (B) 10 percent in the case of any other stock. (3) Aggregation of dividends (A) Aggregation within 85-day period All dividends

(i) which are received by the taxpayer (or a person described in subparagraph (C)) with respect to any share of stock, and (ii) which have ex-dividend dates within the same period of 85 consecutive days, shall be treated as 1 dividend. (B) Aggregation within 1 year where dividends exceed 20 percent of adjusted basis All dividends (i) which are received by the taxpayer (or a person described in subparagraph (C)) with respect to any share of stock, and (ii) which have ex-dividend dates during the same period of 365 consecutive days, shall be treated as extraordinary dividends if the aggregate of such dividends exceeds 20 percent of the taxpayers adjusted basis in such stock (determined without regard to this section). (C) Substituted basis transactions In the case of any stock, a person is described in this subparagraph if (i) the basis of such stock in the hands of such person is determined in whole or in part by reference to the basis of such stock in the hands of the taxpayer, or (ii) the basis of such stock in the hands of the taxpayer is determined in whole or in part by reference to the basis of such stock in the hands of such person. (4) Fair market value determination If the taxpayer establishes to the satisfaction of the Secretary the fair market value of any share of stock as of the day before the ex-dividend date, the taxpayer may elect to apply paragraphs (1) and (3) by substituting such value for the taxpayers adjusted basis. (d) Special rules For purposes of this section (1) Time for reduction Any reduction in basis under subsection (a)(1) shall be treated as occurring at the beginning of the ex-dividend date of the extraordinary dividend to which the reduction relates. (2) Distributions in kind To the extent any dividend consists of property other than cash, the amount of such dividend shall be treated as the fair market value of such property (as of the date of the distribution) reduced as provided in section 301 (b)(2). (3) Determination of holding period For purposes of determining the holding period of stock under subsection (a), rules similar to the rules of paragraphs (3) and (4) of section 246 (c)shall apply; except that 2 years shall be substituted for the number of days specified in subparagraph (B) [1] of section 246 (c)(3). (4) Ex-dividend date The term ex-dividend date means the date on which the share of stock becomes exdividend. (5) Dividend announcement date The term dividend announcement date means, with respect to any dividend, the date on which the corporation declares, announces, or agrees to the amount or payment of such dividend, whichever is the earliest. (6) Exception where stock held during entire existence of corporation (A) In general Subsection (a) shall not apply to any extraordinary dividend with respect to any share of stock of a corporation if (i) such stock was held by the taxpayer during the entire period such corporation was in existence, and (ii) except as provided in regulations, no earnings and profits of such corporation were attributable to transfers of property from (or earnings and profits of) a corporation which is not a qualified corporation. (B) Qualified corporation For purposes of subparagraph (A), the term qualified corporation means any corporation (including a predecessor corporation) (i) with respect to which the taxpayer holds directly or indirectly during the entire period of such corporations existence at least the same ownership interest as the taxpayer holds in the corporation distributing the extraordinary dividend, and (ii) which has no earnings and profits

(I) which were earned by, or (II) which are attributable to gain on property which accrued during a period the corporation holding the property was, a corporation not described in clause (i). (C) Application of paragraph This paragraph shall not apply to any extraordinary dividend to the extent such application is inconsistent with the purposes of this section. (e) Special rules for certain distributions (1) Treatment of partial liquidations and certain redemptions Except as otherwise provided in regulations (A) Redemptions In the case of any redemption of stock (i) which is part of a partial liquidation (within the meaning of section 302(e)) of the redeeming corporation, (ii) which is not pro rata as to all shareholders, or (iii) which would not have been treated (in whole or in part) as a dividend if (I) any options had not been taken into account under section 318 (a)(4), or (II) section 304 (a) had not applied, any amount treated as a dividend with respect to such redemption shall be treated as an extraordinary dividend to which paragraphs (1) and (2) of subsection (a) apply without regard to the period the taxpayer held such stock. In the case of a redemption described in clause (iii), only the basis in the stock redeemed shall be taken into account under subsection (a). (B) Reorganizations, etc. An exchange described in section 356 which is treated as a dividend shall be treated as a redemption of stock for purposes of applying subparagraph (A). (2) Qualifying dividends (A) In general Except as provided in regulations, the term extraordinary dividend does not include any qualifying dividend (within the meaning of section 243). (B) Exception Subparagraph (A) shall not apply to any portion of a dividend which is attributable to earnings and profits which (i) were earned by a corporation during a period it was not a member of the affiliated group, or (ii) are attributable to gain on property which accrued during a period the corporation holding the property was not a member of the affiliated group. (3) Qualified preferred dividends (A) In general In the case of 1 or more qualified preferred dividends with respect to any share of stock (i) this section shall not apply to such dividends if the taxpayer holds such stock for more than 5 years, and (ii) if the taxpayer disposes of such stock before it has been held for more than 5 years, the aggregate reduction under subsection (a)(1) with respect to such dividends shall not be greater than the excess (if any) of (I) the qualified preferred dividends paid with respect to such stock during the period the taxpayer held such stock, over (II) the qualified preferred dividends which would have been paid during such period on the basis of the stated rate of return. (B) Rate of return For purposes of this paragraph (i) Actual rate of return The actual rate of return shall be the rate of return for the period for which the taxpayer held the stock, determined (I) by only taking into account dividends during such period, and (II) by using the lesser of the adjusted basis of the taxpayer in such stock or the liquidation preference of such stock.

(ii) Stated rate of return The stated rate of return shall be the annual rate of the qualified preferred dividend payable with respect to any share of stock (expressed as a percentage of the amount described in clause (i)(II)). (C) Definitions and special rules For purposes of this paragraph (i) Qualified preferred dividend The term qualified preferred dividend means any fixed dividend payable with respect to any share of stock which (I) provides for fixed preferred dividends payable not less frequently than annually, and (II) is not in arrears as to dividends at the time the taxpayer acquires the stock. Such term shall not include any dividend payable with respect to any share of stock if the actual rate of return on such stock exceeds 15 percent. (ii) Holding period In determining the holding period for purposes of subparagraph (A)(ii), subsection (d)(3) shall be applied by substituting 5 years for 2 years. (f) Treatment of dividends on certain preferred stock (1) In general Any dividend with respect to disqualified preferred stock shall be treated as an extraordinary dividend to which paragraphs (1) and (2) of subsection (a) apply without regard to the period the taxpayer held the stock. (2) Disqualified preferred stock For purposes of this subsection, the term disqualified preferred stock means any stock which is preferred as to dividends if (A) when issued, such stock has a dividend rate which declines (or can reasonably be expected to decline) in the future, (B) the issue price of such stock exceeds its liquidation rights or its stated redemption price, or (C) such stock is otherwise structured (i) to avoid the other provisions of this section, and (ii) to enable corporate shareholders to reduce tax through a combination of dividend received deductions and loss on the disposition of the stock. (g) Regulations The Secretary shall prescribe such regulations as may be appropriate to carry out the purposes of this section, including regulations (1) providing for the application of this section in the case of stock dividends, stock splits, reorganizations, and other similar transactions, in the case of stock held by pass-thru entities, and in the case of consolidated groups, and (2) providing that the rules of subsection (f) shall apply in the case of stock which is not preferred as to dividends in cases where stock is structured to avoid the purposes of this section.

[1] See References in Text note below.

1059A. Limitation on taxpayers basis or inventory cost in property imported from related persons
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(a) In general If any property is imported into the United States in a transaction (directly or indirectly) between related persons (within the meaning of section 482), the amount of any costs (1) which are taken into account in computing the basis or inventory cost of such property by the purchaser, and (2) which are also taken into account in computing the customs value of such property,

shall not, for purposes of computing such basis or inventory cost for purposes of this chapter, be greater than the amount of such costs taken into account in computing such customs value. (b) Customs value; import For purposes of this section (1) Customs value The term customs value means the value taken into account for purposes of determining the amount of any customs duties or any other duties which may be imposed on the importation of any property. (2) Import Except as provided in regulations, the term import means the entering, or withdrawal from warehouse, for consumption.

1060. Special allocation rules for certain asset acquisitions


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(a) General rule In the case of any applicable asset acquisition, for purposes of determining both (1) the transferees basis in such assets, and (2) the gain or loss of the transferor with respect to such acquisition, the consideration received for such assets shall be allocated among such assets acquired in such acquisition in the same manner as amounts are allocated to assets under section 338 (b)(5). If in connection with an applicable asset acquisition, the transferee and transferor agree in writing as to the allocation of any consideration, or as to the fair market value of any of the assets, such agreement shall be binding on both the transferee and transferor unless the Secretary determines that such allocation (or fair market value) is not appropriate. (b) Information required to be furnished to Secretary Under regulations, the transferor and transferee in an applicable asset acquisition shall, at such times and in such manner as may be provided in such regulations, furnish to the Secretary the following information: (1) The amount of the consideration received for the assets which is allocated to section 197 intangibles. (2) Any modification of the amount described in paragraph (1). (3) Any other information with respect to other assets transferred in such acquisition as the Secretary deems necessary to carry out the provisions of this section. (c) Applicable asset acquisition For purposes of this section, the term applicable asset acquisition means any transfer (whether directly or indirectly) (1) of assets which constitute a trade or business, and (2) with respect to which the transferees basis in such assets is determined wholly by reference to the consideration paid for such assets. A transfer shall not be treated as failing to be an applicable asset acquisition merely because section 1031 applies to a portion of the assets transferred. (d) Treatment of certain partnership transactions In the case of a distribution of partnership property or a transfer of an interest in a partnership (1) the rules of subsection (a) shall apply but only for purposes of determining the value of section 197 intangibles for purposes of applying section 755, and (2) if section 755 applies, such distribution or transfer (as the case may be) shall be treated as an applicable asset acquisition for purposes of subsection (b). (e) Information required in case of certain transfers of interests in entities (1) In general

If (A) a person who is a 10-percent owner with respect to any entity transfers an interest in such entity, and (B) in connection with such transfer, such owner (or a related person) enters into an employment contract, covenant not to compete, royalty or lease agreement, or other agreement with the transferee, such owner and the transferee shall, at such time and in such manner as the Secretary may prescribe, furnish such information as the Secretary may require. (2) 10-percent owner For purposes of this subsection (A) In general The term 10-percent owner means, with respect to any entity, any person who holds 10 percent or more (by value) of the interests in such entity immediately before the transfer. (B) Constructive ownership Section 318 shall apply in determining ownership of stock in a corporation. Similar principles shall apply in determining the ownership of interests in any other entity. (3) Related person For purposes of this subsection, the term related person means any person who is related (within the meaning of section 267 (b) or 707 (b)(1)) to the 10-percent owner. (f) Cross reference For provisions relating to penalties for failure to file a return required by this section, see section 6721.

1061. Cross references


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(1) For nonrecognition of gain in connection with the transfer of obsolete vessels to the Maritime Administration under chapter 573 of title 46, United States Code, see section 57307 of title 46. (2) For recognition of gain or loss in connection with the construction of new vessels, see chapter 533 of title 46, United States Code.

[PART VREPEALED]
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[ 1071. Repealed.]

1071. Repealed. Pub. L. 1047, 2(a), Apr. 11, 1995, 109 Stat. 93]
How Current is This?

Section, acts Aug. 16, 1954, ch. 736, 68A Stat. 311; Sept. 2, 1958, Pub. L. 85866, title I, 48(a), 72 Stat. 1642; Oct. 4, 1976, Pub. L. 94455, title XIX, 1901(b)(31)(E), 1906 (b) (13)(A), 90 Stat. 1800, 1834, provided for nonrecognition on FCC certified sales and exchanges.

[PART VIREPEALED]
How Current is This?

[ 1081 to 1083. Repealed.]

1081 to 1083. Repealed. Pub. L. 109135, title IV, 402(a)(1), Dec. 21, 2005, 119 Stat. 2610]
How Current is This?

Section 1081, acts Aug. 16, 1954, ch. 736, 68A Stat. 312; Pub. L. 94455, title XIX, 1901(a)(132), 1906 (b)(13)(A), Oct. 4, 1976, 90 Stat. 1786, 1834, provided for nonrecognition of gain or loss on exchanges or distributions in obedience to orders of SEC. Section 1082, acts Aug. 16, 1954, ch. 736, 68A Stat. 315; Pub. L. 91172, title VII, 704(b) (3), Dec. 30, 1969, 83 Stat. 669; Pub. L. 92178, title III, 303(c)(5), Dec. 10, 1971, 85 Stat. 522; Pub. L. 94455, title XIX, 1901(b)(11)(C), 1906 (b)(13)(A), 1951 (c)(2)(B), title XXI, 2124(a)(3)(C), Oct. 4, 1976, 90 Stat. 1795, 1834, 1840, 1917; Pub. L. 9734, title II, 212(d)(2)(E), Aug. 13, 1981, 95 Stat. 239; Pub. L. 99514, title II, 242(b)(1), Oct. 22, 1986, 100 Stat. 2181; Pub. L. 101508, title XI, 11801(c)(6)(D), Nov. 5, 1990, 104 Stat. 1388524, related to basis for determining gain or loss. Section 1083, acts Aug. 16, 1954, ch. 736, 68A Stat. 317; Pub. L. 94455, title XIX, 1901(a)(133), Oct. 4, 1976, 90 Stat. 1786, related to definitions for this part.

PART VIIWASH SALES; STRADDLES


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1091. Loss from wash sales of stock or securities 1092. Straddles

1091. Loss from wash sales of stock or securities


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(a) Disallowance of loss deduction In the case of any loss claimed to have been sustained from any sale or other disposition of shares of stock or securities where it appears that, within a period beginning 30 days before the date of such sale or disposition and ending 30 days after such date, the taxpayer has acquired (by purchase or by an exchange on which the entire amount of gain or loss was recognized by law), or has entered into a contract or option so to acquire, substantially identical stock or securities, then no deduction shall be allowed under section165 unless the taxpayer is a dealer in stock or securities and the loss is sustained in a transaction made in the ordinary course of such business. For purposes of this section, the term stock or

securities shall, except as provided in regulations, include contracts or options to acquire or sell stock or securities. (b) Stock acquired less than stock sold If the amount of stock or securities acquired (or covered by the contract or option to acquire) is less than the amount of stock or securities sold or otherwise disposed of, then the particular shares of stock or securities the loss from the sale or other disposition of which is not deductible shall be determined under regulations prescribed by the Secretary. (c) Stock acquired not less than stock sold If the amount of stock or securities acquired (or covered by the contract or option to acquire) is not less than the amount of stock or securities sold or otherwise disposed of, then the particular shares of stock or securities the acquisition of which (or the contract or option to acquire which) resulted in the nondeductibility of the loss shall be determined under regulations prescribed by the Secretary. (d) Unadjusted basis in case of wash sale of stock If the property consists of stock or securities the acquisition of which (or the contract or option to acquire which) resulted in the nondeductibility (under this section or corresponding provisions of prior internal revenue laws) of the loss from the sale or other disposition of substantially identical stock or securities, then the basis shall be the basis of the stock or securities so sold or disposed of, increased or decreased, as the case may be, by the difference, if any, between the price at which the property was acquired and the price at which such substantially identical stock or securities were sold or otherwise disposed of. (e) Certain short sales of stock or securities and securities futures contracts to sell Rules similar to the rules of subsection (a) shall apply to any loss realized on the closing of a short sale of (or the sale, exchange, or termination of a securities futures contract to sell) stock or securities if, within a period beginning 30 days before the date of such closing and ending 30 days after such date (1) substantially identical stock or securities were sold, or (2) another short sale of (or securities futures contracts to sell) substantially identical stock or securities was entered into. For purposes of this subsection, the term securities futures contract has the meaning provided by section 1234B (c). (f) Cash settlement This section shall not fail to apply to a contract or option to acquire or sell stock or securities solely by reason of the fact that the contract or option settles in (or could be settled in) cash or property other than such stock or securities.

1092. Straddles
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(a) Recognition of loss in case of straddles, etc. (1) Limitation on recognition of loss (A) In general Any loss with respect to 1 or more positions shall be taken into account for any taxable year only to the extent that the amount of such loss exceeds the unrecognized gain (if any) with respect to 1 or more positions which were offsetting positions with respect to 1 or more positions from which the loss arose. (B) Carryover of loss Any loss which may not be taken into account under subparagraph (A) for any taxable year shall, subject to the limitations under subparagraph (A), be treated as sustained in the succeeding taxable year. (2) Special rule for identified straddles (A) In general In the case of any straddle which is an identified straddle (i) paragraph (1) shall not apply with respect to positions comprising the identified straddle,

(ii) if there is any loss with respect to any position of the identified straddle, the basis of each of the offsetting positions in the identified straddle shall be increased by an amount which bears the same ratio to the loss as the unrecognized gain with respect to such offsetting position bears to the aggregate unrecognized gain with respect to all such offsetting positions, (iii) if the application of clause (ii) does not result in an increase in the basis of any offsetting position in the identified straddle, the basis of each of the offsetting positions in the identified straddle shall be increased in a manner which (I) is reasonable, consistent with the purposes of this paragraph, and consistently applied by the taxpayer, and (II) results in an aggregate increase in the basis of such offsetting positions which is equal to the loss described in clause (ii), and (iv) any loss described in clause (ii) shall not otherwise be taken into account for purposes of this title. (B) Identified straddle The term identified straddle means any straddle (i) which is clearly identified on the taxpayers records as an identified straddle before the earlier of (I) the close of the day on which the straddle is acquired, or (II) such time as the Secretary may prescribe by regulations. (ii) to the extent provided by regulations, the value of each position of which (in the hands of the taxpayer immediately before the creation of the straddle) is not less than the basis of such position in the hands of the taxpayer at the time the straddle is created, and (iii) which is not part of a larger straddle. A straddle shall be treated as clearly identified for purposes of clause (i) only if such identification includes an identification of the positions in the straddle which are offsetting with respect [1] other positions in the straddle. (C) Application to liabilities and obligations Except as otherwise provided by the Secretary, rules similar to the rules of clauses (ii) and (iii) of subparagraph (A) shall apply for purposes of this paragraph with respect to any position which is, or has been, a liability or obligation. (D) Regulations The Secretary shall prescribe such regulations or other guidance as may be necessary or appropriate to carry out the purposes of this paragraph. Such regulations or other guidance may specify the proper methods for clearly identifying a straddle as an identified straddle (and for identifying the positions comprising such straddle), the rules for the application of this section to a taxpayer which fails to comply with those identification requirements, the rules for the application of this section to a position which is or has been a liability or obligation, methods of loss allocation which satisfy the requirements of subparagraph (A)(iii), and the ordering rules in cases where a taxpayer disposes (or otherwise ceases to be the holder) of any part of any position which is part of an identified straddle. (3) Unrecognized gain For purposes of this subsection (A) In general The term unrecognized gain means (i) in the case of any position held by the taxpayer as of the close of the taxable year, the amount of gain which would be taken into account with respect to such position if such position were sold on the last business day of such taxable year at its fair market value, and (ii) in the case of any position with respect to which, as of the close of the taxable year, gain has been realized but not recognized, the amount of gain so realized. (B) Special rule for identified straddles For purposes of paragraph (2)(A)(ii), the unrecognized gain with respect to any offsetting position shall be the excess of the fair market value of the position at the time of the determination over the fair market value of the position at the time the taxpayer identified the position as a position in an identified straddle. (C) Reporting of gain (i) In general Each taxpayer shall disclose to the Secretary, at such time and in such manner and form as the Secretary may prescribe by regulations

(I) each position (whether or not part of a straddle) with respect to which, as of the close of the taxable year, there is unrecognized gain, and (II) the amount of such unrecognized gain. (ii) Reports not required in certain cases Clause (i) shall not apply (I) to any position which is part of an identified straddle, (II) to any position which, with respect to the taxpayer, is property described in paragraph (1) or (2) of section 1221 (a)or to any position which is part of a hedging transaction (as defined in section 1256 (e)), or (III) with respect to any taxable year if no loss on a position (including a regulated futures contract) has been sustained during such taxable year or if the only loss sustained on such position is a loss described in subclause (II). (b) Regulations (1) In general The Secretary shall prescribe such regulations with respect to gain or loss on positions which are a part of a straddle as may be appropriate to carry out the purposes of this section and section 263 (g). To the extent consistent with such purposes, such regulations shall include rules applying the principles of subsections (a) and (d) of section 1091 and of subsections (b) and (d) of section 1233. (2) Regulations relating to mixed straddles (A) Elective provisions in lieu of section 1233 (d) principles The regulations prescribed under paragraph (1) shall provide that (i) the taxpayer may offset gains and losses from positions which are part of mixed straddles (I) by straddle-by-straddle identification, or (II) by the establishment (with respect to any class of activities) of a mixed straddle account for which gains and losses would be recognized (and offset) on a periodic basis, (ii) such offsetting will occur before the application of section1256, and section 1256 (a) (3) will only apply to net gain or net loss attributable to section 1256 contracts, and (iii) the principles of section 1233 (d) shall not apply with respect to any straddle identified under clause (i)(I) or part of an account established under clause (i)(II). (B) Limitation on net gain or net loss from mixed straddle account In the case of any mixed straddle account referred to in subparagraph (A)(i)(II) (i) Not more than 50 percent of net gain may be treated as long-term capital gain In no event shall more than 50 percent of the net gain from such account for any taxable year be treated as long-term capital gain. (ii) Not more than 40 percent of net loss may be treated as short-term capital loss In no event shall more than 40 percent of the net loss from such account for any taxable year be treated as short-term capital loss. (C) Authority to treat certain positions as mixed straddles The regulations prescribed under paragraph (1) may treat as a mixed straddle positions not described in section 1256 (d)(4). (D) Timing and character authority The regulations prescribed under paragraph (1) shall include regulations relating to the timing and character of gains and losses in case of straddles where at least 1 position is ordinary and at least 1 position is capital. (c) Straddle defined For purposes of this section (1) In general The term straddle means offsetting positions with respect to personal property. (2) Offsetting positions (A) In general A taxpayer holds offsetting positions with respect to personal property if there is a substantial diminution of the taxpayers risk of loss from holding any position with respect to personal property by reason of his holding 1 or more other positions with respect to personal property (whether or not of the same kind). (B) Special rule for identified straddles

In the case of any position which is not part of an identified straddle (within the meaning of subsection (a)(2)(B)), such position shall not be treated as offsetting with respect to any position which is part of an identified straddle. (3) Presumption (A) In general For purposes of paragraph (2), 2 or more positions shall be presumed to be offsetting if (i) the positions are in the same personal property (whether established in such property or a contract for such property), (ii) the positions are in the same personal property, even though such property may be in a substantially altered form, (iii) the positions are in debt instruments of a similar maturity or other debt instruments described in regulations prescribed by the Secretary, (iv) the positions are sold or marketed as offsetting positions (whether or not such positions are called a straddle, spread, butterfly, or any similar name), (v) the aggregate margin requirement for such positions is lower than the sum of the margin requirements for each such position (if held separately), or (vi) there are such other factors (or satisfaction of subjective or objective tests) as the Secretary may by regulations prescribe as indicating that such positions are offsetting. For purposes of the preceding sentence, 2 or more positions shall be treated as described in clause (i), (ii), (iii), or (vi) only if the value of 1 or more of such positions ordinarily varies inversely with the value of 1 or more other such positions. (B) Presumption may be rebutted Any presumption established pursuant to subparagraph (A) may be rebutted. (4) Exception for certain straddles consisting of qualified covered call options and the optioned stock (A) In general If (i) all the offsetting positions making up any straddle consist of 1 or more qualified covered call options and the stock to be purchased from the taxpayer under such options, and (ii) such straddle is not part of a larger straddle, such straddle shall not be treated as a straddle for purposes of this section and section 263 (g). (B) Qualified covered call option defined For purposes of subparagraph (A), the term qualified covered call option means any option granted by the taxpayer to purchase stock held by the taxpayer (or stock acquired by the taxpayer in connection with the granting of the option) but only if (i) such option is traded on a national securities exchange which is registered with the Securities and Exchange Commission or other market which the Secretary determines has rules adequate to carry out the purposes of this paragraph, (ii) such option is granted more than 30 days before the day on which the option expires, (iii) such option is not a deep-in-the-money option, (iv) such option is not granted by an options dealer (within the meaning of section 1256 (g) (8)) in connection with his activity of dealing in options, and (v) gain or loss with respect to such option is not ordinary income or loss. (C) Deep-in-the-money option For purposes of subparagraph (B), the term deep-in-the-money option means an option having a strike price lower than the lowest qualified bench mark. (D) Lowest qualified bench mark (i) In general Except as otherwise provided in this subparagraph, for purposes of subparagraph (C), the term lowest qualified bench mark means the highest available strike price which is less than the applicable stock price. (ii) Special rule where option is for period more than 90 days and strike price exceeds $50 In the case of an option (I) which is granted more than 90 days before the date on which such option expires, and (II) with respect to which the strike price is more than $50, the lowest qualified bench mark is the second highest available strike price which is less than the applicable stock price. (iii) 85 percent rule where applicable stock price $25 or less If

(I) the applicable stock price is $25 or less, and (II) but for this clause, the lowest qualified bench mark would be less than 85 percent of the applicable stock price, the lowest qualified bench mark shall be treated as equal to 85 percent of the applicable stock price. (iv) Limitation where applicable stock price $150 or less If (I) the applicable stock price is $150 or less, and (II) but for this clause, the lowest qualified bench mark would be less than the applicable stock price reduced by $10, the lowest qualified bench mark shall be treated as equal to the applicable stock price reduced by $10. (E) Special year-end rule Subparagraph (A) shall not apply to any straddle for purposes of section 1092 (a) if (i) the qualified covered call options referred to in such subparagraph are closed or the stock is disposed of at a loss during any taxable year, (ii) gain on disposition of the stock to be purchased from the taxpayer under such options or gains on such options are includible in gross income for a later taxable year, and (iii) such stock or option was not held by the taxpayer for 30 days or more after the closing of such options or the disposition of such stock. For purposes of the preceding sentence, the rules of paragraphs (3) (other than subparagraph (B) [2] thereof) and (4) of section 246 (c)shall apply in determining the period for which the taxpayer holds the stock. (F) Strike price For purposes of this paragraph, the term strike price means the price at which the option is exercisable. (G) Applicable stock price For purposes of subparagraph (D), the term applicable stock price means, with respect to any stock for which an option has been granted (i) the closing price of such stock on the most recent day on which such stock was traded before the date on which such option was granted, or (ii) the opening price of such stock on the day on which such option was granted, but only if such price is greater than 110 percent of the price determined under clause (i). (H) Regulations The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the purposes of this paragraph. Such regulations may include modifications to the provisions of this paragraph which are appropriate to take account of changes in the practices of option exchanges or to prevent the use of options for tax avoidance purposes. (d) Definitions and special rules For purposes of this section (1) Personal property The term personal property means any personal property of a type which is actively traded. (2) Position The term position means an interest (including a futures or forward contract or option) in personal property. (3) Special rules for stock For purposes of paragraph (1) (A) In general In the case of stock, the term personal property includes stock only if (i) such stock is of a type which is actively traded and at least 1 of the positions offsetting such stock is a position with respect to such stock or substantially similar or related property, or (ii) such stock is of a corporation formed or availed of to take positions in personal property which offset positions taken by any shareholder. (B) Rule for application For purposes of determining whether subsection (e) applies to any transaction with respect to stock described in subparagraph (A)(ii), all includible corporations of an affiliated group (within the meaning of section 1504 (a)) shall be treated as 1 taxpayer. (4) Positions held by related persons, etc.

(A) In general In determining whether 2 or more positions are offsetting, the taxpayer shall be treated as holding any position held by a related person. (B) Related person For purposes of subparagraph (A), a person is a related person to the taxpayer if with respect to any period during which a position is held by such person, such person (i) is the spouse of the taxpayer, or (ii) files a consolidated return (within the meaning of section1501) with the taxpayer for any taxable year which includes a portion of such period. (C) Certain flowthrough entities If part or all of the gain or loss with respect to a position held by a partnership, trust, or other entity would properly be taken into account for purposes of this chapter by a taxpayer, then, except to the extent otherwise provided in regulations, such position shall be treated as held by the taxpayer. (5) Special rule for section 1256 contracts (A) General rule In the case of a straddle at least 1 (but not all) of the positions of which are section 1256 contracts, the provisions of this section shall apply to any section 1256 contract and any other position making up such straddle. (B) Special rule for identified straddles For purposes of subsection (a)(2) (relating to identified straddles), subparagraph (A) and section 1256 (a)(4) shall not apply to a straddle all of the offsetting positions of which consist of section1256 contracts. (6) Section 1256 contract The term section 1256 contract has the meaning given such term by section 1256 (b). (7) Special rules for foreign currency (A) Position to include interest in certain debt For purposes of paragraph (2), an obligors interest in a nonfunctional currency denominated debt obligation is treated as a position in the nonfunctional currency. (B) Actively traded requirement For purposes of paragraph (1), foreign currency for which there is an active interbank market is presumed to be actively traded. (8) Special rules for physically settled positions For purposes of subsection (a), if a taxpayer settles a position which is part of a straddle by delivering property to which the position relates (and such position, if terminated, would result in a realization of a loss), then such taxpayer shall be treated as if such taxpayer (A) terminated the position for its fair market value immediately before the settlement, and (B) sold the property so delivered by the taxpayer at its fair market value. (e) Exception for hedging transactions This section shall not apply in the case of any hedging transaction (as defined in section 1256 (e)). (f) Treatment of gain or loss and suspension of holding period where taxpayer grantor of qualified covered call option If a taxpayer holds any stock and grants a qualified covered call option to purchase such stock with a strike price less than the applicable stock price (1) Treatment of loss Any loss with respect to such option shall be treated as long-term capital loss if, at the time such loss is realized, gain on the sale or exchange of such stock would be treated as longterm capital gain. (2) Suspension of holding period The holding period of such stock shall not include any period during which the taxpayer is the grantor of such option. (g) Cross reference For provision requiring capitalization of certain interest and carrying charges where there is a straddle, see section 263 (g).

[1] So in original. Probably should be followed by to.

[2] See References in Text note below.

[PART VIIIREPEALED]
How Current is This?

[ 1101 to 1103. Repealed.]

1101 to 1103. Repealed. Pub. L. 101508, title XI, 11801(a)(34), Nov. 5, 1990, 104 Stat. 1388521]
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Section 1101, added May 9, 1956, ch. 240, 10(a), 70 Stat. 139; amended Oct. 2, 1976, Pub. L. 94452, 2(a), 90 Stat. 1503; Oct. 4, 1976, Pub. L. 94455, title XIX, 1906(b)(13)(A), 90 Stat. 1834; Oct. 19, 1982, Pub. L. 97354, 5(a)(34), 96 Stat. 1695, related to distributions of property pursuant to Bank Holding Company Act. Section 1102, added May 9, 1956, ch. 240, 10(a), 70 Stat. 143; amended Dec. 27, 1967, Pub. L. 90225, 1, 81 Stat. 730; Oct. 2, 1976, Pub. L. 94452, 2(a),90 Stat. 1508; Oct. 4, 1976, Pub. L. 94455, title XIX, 1906(b)(13)(A), 90 Stat. 1834, related to basis of property acquired in distributions, periods of limitation, allocation of earnings and profits, and itemization of property. Section 1103, added May 9, 1956, ch. 240, 10(a), 70 Stat. 144; amended Oct. 2, 1976, Pub. L. 94452, 2(a), 90 Stat. 1509; Oct. 4, 1976, Pub. L. 94455, title XIX, 1906(b)(13)(A), 90 Stat. 1834, related to definitions for this part.

[PART IXREPEALED]
How Current is This?

[ 1111. Repealed.]

1111. Repealed. Pub. L. 94455, title XIX, 1901(a)(134), Oct. 4, 1976, 90 Stat. 1786]
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Section, added Pub. L. 87403, 1(a), Feb. 2, 1962, 76 Stat. 4, related to distribution of stock pursuant to order enforcing antitrust laws.

Subchapter PCapital Gains and Losses


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PART ITREATMENT OF CAPITAL GAINS ( 12011202) PART IITREATMENT OF CAPITAL LOSSES ( 12111212)

PART IIIGENERAL RULES FOR DETERMINING CAPITAL GAINS AND LOSSES ( 12211223) PART IVSPECIAL RULES FOR DETERMINING CAPITAL GAINS AND LOSSES ( 12311260) PART VSPECIAL RULES FOR BONDS AND OTHER DEBT INSTRUMENTS ( 12711288) PART VITREATMENT OF CERTAIN PASSIVE FOREIGN INVESTMENT COMPANIES ( 12911298)

PART ITREATMENT OF CAPITAL GAINS


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1201. Alternative tax for corporations 1202. Partial exclusion for gain from certain small business stock

1201. Alternative tax for corporations


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(a) General rule If for any taxable year a corporation has a net capital gain and any rate of tax imposed by section 11, 511, or 831 (a) or (b) (whichever is applicable) exceeds 35 percent (determined without regard to the last 2 sentences of section 11 (b)(1)), then, in lieu of any such tax, there is hereby imposed a tax (if such tax is less than the tax imposed by such sections) which shall consist of the sum of (1) a tax computed on the taxable income reduced by the amount of the net capital gain, at the rates and in the manner as if this subsection had not been enacted, plus (2) a tax of 35 percent of the net capital gain (or, if less, taxable income). (b) Special rate for qualified timber gains (1) In general If, for any taxable year ending after the date of the enactment of the Food, Conservation, and Energy Act of 2008 and beginning on or before the date which is 1 year after such date, a corporation has both a net capital gain and qualified timber gain (A) subsection (a) shall apply to such corporation for the taxable year without regard to whether the applicable tax rate exceeds 35 percent, and (B) the tax computed under subsection (a)(2) shall be equal to the sum of (i) 15 percent of the least of (I) qualified timber gain, (II) net capital gain, or (III) taxable income, plus (ii) 35 percent of the excess (if any) of taxable income over the sum of the amounts for which a tax was determined under subsection (a)(1) and clause (i).

(2) Qualified timber gain For purposes of this section, the term qualified timber gain means, with respect to any taxpayer for any taxable year, the excess (if any) of (A) the sum of the taxpayers gains described in subsections (a) and (b) of section 631 for such year, over (B) the sum of the taxpayers losses described in such subsections for such year. For purposes of subparagraphs (A) and (B), only timber held more than 15 years shall be taken into account. (3) Computation for taxable years in which rate first applies or ends In the case of any taxable year which includes either of the dates set forth in paragraph (1), the qualified timber gain for such year shall not exceed the qualified timber gain properly taken into account for (A) in the case of the taxable year including the date of the enactment of the Food, Conservation, and Energy Act of 2008, the portion of the year after such date, and (B) in the case of the taxable year including the date which is 1 year after such date of enactment, the portion of the year on or before such later date. (c) Cross references For computation of the alternative tax (1) in the case of life insurance companies, see section 801 (a)(2), (2) in the case of regulated investment companies and their shareholders, see section 852 (b)(3)(A) and (D), and (3) in the case of real estate investment trusts, see section 857 (b)(3)(A).

1202. Partial exclusion for gain from certain small business stock
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(a) Exclusion (1) In general In the case of a taxpayer other than a corporation, gross income shall not include 50 percent of any gain from the sale or exchange of qualified small business stock held for more than 5 years. (2) Empowerment zone businesses (A) In general In the case of qualified small business stock acquired after the date of the enactment of this paragraph in a corporation which is a qualified business entity (as defined in section 1397C (b)) during substantially all of the taxpayers holding period for such stock, paragraph (1) shall be applied by substituting 60 percent for 50 percent. (B) Certain rules to apply Rules similar to the rules of paragraphs (5) and (7) of section 1400B(b) shall apply for purposes of this paragraph. (C) Gain after 2014 not qualified Subparagraph (A) shall not apply to gain attributable to periods after December 31, 2014. (D) Treatment of DC zone The District of Columbia Enterprise Zone shall not be treated as an empowerment zone for purposes of this paragraph. (3) Special rules for 2009 and 2010 In the case of qualified small business stock acquired after the date of the enactment of this paragraph and before January 1, 2011 (A) paragraph (1) shall be applied by substituting 75 percent for 50 percent, and (B) paragraph (2) shall not apply. (b) Per-issuer limitation on taxpayers eligible gain (1) In general

If the taxpayer has eligible gain for the taxable year from 1 or more dispositions of stock issued by any corporation, the aggregate amount of such gain from dispositions of stock issued by such corporation which may be taken into account under subsection (a) for the taxable year shall not exceed the greater of (A) $10,000,000 reduced by the aggregate amount of eligible gain taken into account by the taxpayer under subsection (a) for prior taxable years and attributable to dispositions of stock issued by such corporation, or (B) 10 times the aggregate adjusted bases of qualified small business stock issued by such corporation and disposed of by the taxpayer during the taxable year. For purposes of subparagraph (B), the adjusted basis of any stock shall be determined without regard to any addition to basis after the date on which such stock was originally issued. (2) Eligible gain For purposes of this subsection, the term eligible gain means any gain from the sale or exchange of qualified small business stock held for more than 5 years. (3) Treatment of married individuals (A) Separate returns In the case of a separate return by a married individual, paragraph (1)(A) shall be applied by substituting $5,000,000 for $10,000,000. (B) Allocation of exclusion In the case of any joint return, the amount of gain taken into account under subsection (a) shall be allocated equally between the spouses for purposes of applying this subsection to subsequent taxable years. (C) Marital status For purposes of this subsection, marital status shall be determined under section 7703. (c) Qualified small business stock For purposes of this section (1) In general Except as otherwise provided in this section, the term qualified small business stock means any stock in a C corporation which is originally issued after the date of the enactment of the Revenue Reconciliation Act of 1993, if (A) as of the date of issuance, such corporation is a qualified small business, and (B) except as provided in subsections (f) and (h), such stock is acquired by the taxpayer at its original issue (directly or through an underwriter) (i) in exchange for money or other property (not including stock), or (ii) as compensation for services provided to such corporation (other than services performed as an underwriter of such stock). (2) Active business requirement; etc. (A) In general Stock in a corporation shall not be treated as qualified small business stock unless, during substantially all of the taxpayers holding period for such stock, such corporation meets the active business requirements of subsection (e) and such corporation is a C corporation. (B) Special rule for certain small business investment companies (i) Waiver of active business requirement Notwithstanding any provision of subsection (e), a corporation shall be treated as meeting the active business requirements of such subsection for any period during which such corporation qualifies as a specialized small business investment company. (ii) Specialized small business investment company For purposes of clause (i), the term specialized small business investment company means any eligible corporation (as defined in subsection (e)(4)) which is licensed to operate under section 301(d) of the Small Business Investment Act of 1958 (as in effect on May 13, 1993). (3) Certain purchases by corporation of its own stock (A) Redemptions from taxpayer or related person Stock acquired by the taxpayer shall not be treated as qualified small business stock if, at any time during the 4-year period beginning on the date 2 years before the issuance of such stock, the corporation issuing such stock purchased (directly or indirectly) any of its stock from the taxpayer or from a person related (within the meaning of section 267 (b) or 707 (b)) to the taxpayer.

(B) Significant redemptions Stock issued by a corporation shall not be treated as qualified business stock if, during the 2year period beginning on the date 1 year before the issuance of such stock, such corporation made 1 or more purchases of its stock with an aggregate value (as of the time of the respective purchases) exceeding 5 percent of the aggregate value of all of its stock as of the beginning of such 2-year period. (C) Treatment of certain transactions If any transaction is treated under section 304 (a) as a distribution in redemption of the stock of any corporation, for purposes of subparagraphs (A) and (B), such corporation shall be treated as purchasing an amount of its stock equal to the amount treated as such a distribution under section 304 (a). (d) Qualified small business For purposes of this section (1) In general The term qualified small business means any domestic corporation which is a C corporation if (A) the aggregate gross assets of such corporation (or any predecessor thereof) at all times on or after the date of the enactment of the Revenue Reconciliation Act of 1993 and before the issuance did not exceed $50,000,000, (B) the aggregate gross assets of such corporation immediately after the issuance (determined by taking into account amounts received in the issuance) do not exceed $50,000,000, and (C) such corporation agrees to submit such reports to the Secretary and to shareholders as the Secretary may require to carry out the purposes of this section. (2) Aggregate gross assets (A) In general For purposes of paragraph (1), the term aggregate gross assets means the amount of cash and the aggregate adjusted bases of other property held by the corporation. (B) Treatment of contributed property For purposes of subparagraph (A), the adjusted basis of any property contributed to the corporation (or other property with a basis determined in whole or in part by reference to the adjusted basis of property so contributed) shall be determined as if the basis of the property contributed to the corporation (immediately after such contribution) were equal to its fair market value as of the time of such contribution. (3) Aggregation rules (A) In general All corporations which are members of the same parent-subsidiary controlled group shall be treated as 1 corporation for purposes of this subsection. (B) Parent-subsidiary controlled group For purposes of subparagraph (A), the term parent-subsidiary controlled group means any controlled group of corporations as defined in section 1563 (a)(1), except that (i) more than 50 percent shall be substituted for at least 80 percent each place it appears in section 1563 (a)(1), and (ii) section 1563 (a)(4) shall not apply. (e) Active business requirement (1) In general For purposes of subsection (c)(2), the requirements of this subsection are met by a corporation for any period if during such period (A) at least 80 percent (by value) of the assets of such corporation are used by such corporation in the active conduct of 1 or more qualified trades or businesses, and (B) such corporation is an eligible corporation. (2) Special rule for certain activities For purposes of paragraph (1), if, in connection with any future qualified trade or business, a corporation is engaged in (A) start-up activities described in section 195 (c)(1)(A), (B) activities resulting in the payment or incurring of expenditures which may be treated as research and experimental expenditures under section 174, or (C) activities with respect to in-house research expenses described in section 41 (b)(4),

assets used in such activities shall be treated as used in the active conduct of a qualified trade or business. Any determination under this paragraph shall be made without regard to whether a corporation has any gross income from such activities at the time of the determination. (3) Qualified trade or business For purposes of this subsection, the term qualified trade or business means any trade or business other than (A) any trade or business involving the performance of services in the fields of health, law, engineering, architecture, accounting, actuarial science, performing arts, consulting, athletics, financial services, brokerage services, or any trade or business where the principal asset of such trade or business is the reputation or skill of 1 or more of its employees, (B) any banking, insurance, financing, leasing, investing, or similar business, (C) any farming business (including the business of raising or harvesting trees), (D) any business involving the production or extraction of products of a character with respect to which a deduction is allowable under section 613 or 613A, and (E) any business of operating a hotel, motel, restaurant, or similar business. (4) Eligible corporation For purposes of this subsection, the term eligible corporation means any domestic corporation; except that such term shall not include (A) a DISC or former DISC, (B) a corporation with respect to which an election under section 936is in effect or which has a direct or indirect subsidiary with respect to which such an election is in effect, (C) a regulated investment company, real estate investment trust, or REMIC, and (D) a cooperative. (5) Stock in other corporations (A) Look-thru in case of subsidiaries For purposes of this subsection, stock and debt in any subsidiary corporation shall be disregarded and the parent corporation shall be deemed to own its ratable share of the subsidiarys assets, and to conduct its ratable share of the subsidiarys activities. (B) Portfolio stock or securities A corporation shall be treated as failing to meet the requirements of paragraph (1) for any period during which more than 10 percent of the value of its assets (in excess of liabilities) consists of stock or securities in other corporations which are not subsidiaries of such corporation (other than assets described in paragraph (6)). (C) Subsidiary For purposes of this paragraph, a corporation shall be considered a subsidiary if the parent owns more than 50 percent of the combined voting power of all classes of stock entitled to vote, or more than 50 percent in value of all outstanding stock, of such corporation. (6) Working capital For purposes of paragraph (1)(A), any assets which (A) are held as a part of the reasonably required working capital needs of a qualified trade or business of the corporation, or (B) are held for investment and are reasonably expected to be used within 2 years to finance research and experimentation in a qualified trade or business or increases in working capital needs of a qualified trade or business, shall be treated as used in the active conduct of a qualified trade or business. For periods after the corporation has been in existence for at least 2 years, in no event may more than 50 percent of the assets of the corporation qualify as used in the active conduct of a qualified trade or business by reason of this paragraph. (7) Maximum real estate holdings A corporation shall not be treated as meeting the requirements of paragraph (1) for any period during which more than 10 percent of the total value of its assets consists of real property which is not used in the active conduct of a qualified trade or business. For purposes of the preceding sentence, the ownership of, dealing in, or renting of real property shall not be treated as the active conduct of a qualified trade or business. (8) Computer software royalties

For purposes of paragraph (1), rights to computer software which produces active business computer software royalties (within the meaning of section 543 (d)(1)) shall be treated as an asset used in the active conduct of a trade or business. (f) Stock acquired on conversion of other stock If any stock in a corporation is acquired solely through the conversion of other stock in such corporation which is qualified small business stock in the hands of the taxpayer (1) the stock so acquired shall be treated as qualified small business stock in the hands of the taxpayer, and (2) the stock so acquired shall be treated as having been held during the period during which the converted stock was held. (g) Treatment of pass-thru entities (1) In general If any amount included in gross income by reason of holding an interest in a pass-thru entity meets the requirements of paragraph (2) (A) such amount shall be treated as gain described in subsection (a), and (B) for purposes of applying subsection (b), such amount shall be treated as gain from a disposition of stock in the corporation issuing the stock disposed of by the pass-thru entity and the taxpayers proportionate share of the adjusted basis of the pass-thru entity in such stock shall be taken into account. (2) Requirements An amount meets the requirements of this paragraph if (A) such amount is attributable to gain on the sale or exchange by the pass-thru entity of stock which is qualified small business stock in the hands of such entity (determined by treating such entity as an individual) and which was held by such entity for more than 5 years, and (B) such amount is includible in the gross income of the taxpayer by reason of the holding of an interest in such entity which was held by the taxpayer on the date on which such passthru entity acquired such stock and at all times thereafter before the disposition of such stock by such pass-thru entity. (3) Limitation based on interest originally held by taxpayer Paragraph (1) shall not apply to any amount to the extent such amount exceeds the amount to which paragraph (1) would have applied if such amount were determined by reference to the interest the taxpayer held in the pass-thru entity on the date the qualified small business stock was acquired. (4) Pass-thru entity For purposes of this subsection, the term pass-thru entity means (A) any partnership, (B) any S corporation, (C) any regulated investment company, and (D) any common trust fund. (h) Certain tax-free and other transfers For purposes of this section (1) In general In the case of a transfer described in paragraph (2), the transferee shall be treated as (A) having acquired such stock in the same manner as the transferor, and (B) having held such stock during any continuous period immediately preceding the transfer during which it was held (or treated as held under this subsection) by the transferor. (2) Description of transfers A transfer is described in this subsection if such transfer is (A) by gift, (B) at death, or (C) from a partnership to a partner of stock with respect to which requirements similar to the requirements of subsection (g) are met at the time of the transfer (without regard to the 5year holding period requirement). (3) Certain rules made applicable Rules similar to the rules of section 1244 (d)(2) shall apply for purposes of this section. (4) Incorporations and reorganizations involving nonqualified stock (A) In general

In the case of a transaction described in section 351 or a reorganization described in section 368, if qualified small business stock is exchanged for other stock which would not qualify as qualified small business stock but for this subparagraph, such other stock shall be treated as qualified small business stock acquired on the date on which the exchanged stock was acquired. (B) Limitation This section shall apply to gain from the sale or exchange of stock treated as qualified small business stock by reason of subparagraph (A) only to the extent of the gain which would have been recognized at the time of the transfer described in subparagraph (A) if section351 or 368 had not applied at such time. The preceding sentence shall not apply if the stock which is treated as qualified small business stock by reason of subparagraph (A) is issued by a corporation which (as of the time of the transfer described in subparagraph (A)) is a qualified small business. (C) Successive application For purposes of this paragraph, stock treated as qualified small business stock under subparagraph (A) shall be so treated for subsequent transactions or reorganizations, except that the limitation of subparagraph (B) shall be applied as of the time of the first transfer to which such limitation applied (determined after the application of the second sentence of subparagraph (B)). (D) Control test In the case of a transaction described in section 351, this paragraph shall apply only if, immediately after the transaction, the corporation issuing the stock owns directly or indirectly stock representing control (within the meaning of section 368(c)) of the corporation whose stock was exchanged. (i) Basis rules For purposes of this section (1) Stock exchanged for property In the case where the taxpayer transfers property (other than money or stock) to a corporation in exchange for stock in such corporation (A) such stock shall be treated as having been acquired by the taxpayer on the date of such exchange, and (B) the basis of such stock in the hands of the taxpayer shall in no event be less than the fair market value of the property exchanged. (2) Treatment of contributions to capital If the adjusted basis of any qualified small business stock is adjusted by reason of any contribution to capital after the date on which such stock was originally issued, in determining the amount of the adjustment by reason of such contribution, the basis of the contributed property shall in no event be treated as less than its fair market value on the date of the contribution. (j) Treatment of certain short positions (1) In general If the taxpayer has an offsetting short position with respect to any qualified small business stock, subsection (a) shall not apply to any gain from the sale or exchange of such stock unless (A) such stock was held by the taxpayer for more than 5 years as of the first day on which there was such a short position, and (B) the taxpayer elects to recognize gain as if such stock were sold on such first day for its fair market value. (2) Offsetting short position For purposes of paragraph (1), the taxpayer shall be treated as having an offsetting short position with respect to any qualified small business stock if (A) the taxpayer has made a short sale of substantially identical property, (B) the taxpayer has acquired an option to sell substantially identical property at a fixed price, or (C) to the extent provided in regulations, the taxpayer has entered into any other transaction which substantially reduces the risk of loss from holding such qualified small business stock.

For purposes of the preceding sentence, any reference to the taxpayer shall be treated as including a reference to any person who is related (within the meaning of section 267 (b) or 707 (b)) to the taxpayer. (k) Regulations The Secretary shall prescribe such regulations as may be appropriate to carry out the purposes of this section, including regulations to prevent the avoidance of the purposes of this section through split-ups, shell corporations, partnerships, or otherwise.

PART IITREATMENT OF CAPITAL LOSSES


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1211. Limitation on capital losses 1212. Capital loss carrybacks and carryovers

1211. Limitation on capital losses


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(a) Corporations In the case of a corporation, losses from sales or exchanges of capital assets shall be allowed only to the extent of gains from such sales or exchanges. (b) Other taxpayers In the case of a taxpayer other than a corporation, losses from sales or exchanges of capital assets shall be allowed only to the extent of the gains from such sales or exchanges, plus (if such losses exceed such gains) the lower of (1) $3,000 ($1,500 in the case of a married individual filing a separate return), or (2) the excess of such losses over such gains.

1212. Capital loss carrybacks and carryovers


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(a) Corporations (1) In general If a corporation has a net capital loss for any taxable year (hereinafter in this paragraph referred to as the loss year), the amount thereof shall be (A) a capital loss carryback to each of the 3 taxable years preceding the loss year, but only to the extent (i) such loss is not attributable to a foreign expropriation capital loss, and (ii) the carryback of such loss does not increase or produce a net operating loss (as defined in section 172 (c)) for the taxable year to which it is being carried back; (B) except as provided in subparagraph (C), a capital loss carryover to each of the 5 taxable years succeeding the loss year; and (C) a capital loss carryover (i) in the case of a regulated investment company (as defined in section 851) to each of the 8 taxable years succeeding the loss year, and (ii) to the extent such loss is attributable to a foreign expropriation capital loss, to each of the 10 taxable years succeeding the loss year. and shall be treated as a short-term capital loss in each such taxable year. The entire amount of the net capital loss for any taxable year shall be carried to the earliest of the taxable years

to which such loss may be carried, and the portion of such loss which shall be carried to each of the other taxable years to which such loss may be carried shall be the excess, if any, of such loss over the total of the capital gain net income for each of the prior taxable years to which such loss may be carried. For purposes of the preceding sentence, the capital gain net income for any such prior taxable year shall be computed without regard to the net capital loss for the loss year or for any taxable year thereafter. In the case of any net capital loss which cannot be carried back in full to a preceding taxable year by reason of clause (ii) of subparagraph (A), the capital gain net income for such prior taxable year shall in no case be treated as greater than the amount of such loss which can be carried back to such preceding taxable year upon the application of such clause (ii). (2) Definitions and special rules (A) Foreign expropriation capital loss defined For purposes of this subsection, the term foreign expropriation capital loss means, for any taxable year, the sum of the losses taken into account in computing the net capital loss for such year which are (i) losses sustained directly by reason of the expropriation, intervention, seizure, or similar taking of property by the government of any foreign country, any political subdivision thereof, or any agency or instrumentality of the foregoing, or (ii) losses (treated under section 165 (g)(1) as losses from the sale or exchange of capital assets) from securities which become worthless by reason of the expropriation, intervention, seizure, or similar taking of property by the government of any foreign country, any political subdivision thereof, or any agency or instrumentality of the foregoing. (B) Portion of loss attributable to foreign expropriation capital loss For purposes of paragraph (1), the portion of any net capital loss for any taxable year attributable to a foreign expropriation capital loss is the amount of the foreign expropriation capital loss for such year (but not in excess of the net capital loss for such year). (C) Priority of application For purposes of paragraph (1), if a portion of a net capital loss for any taxable year is attributable to a foreign expropriation capital loss, such portion shall be considered to be a separate net capital loss for such year to be applied after the other portion of such net capital loss. (3) Special rules on carrybacks A net capital loss of a corporation shall not be carried back under paragraph (1)(A) to a taxable year (A) for which it is a regulated investment company (as defined in section 851), or (B) for which it is a real estate investment trust (as defined in section856). (b) Other taxpayers (1) In general If a taxpayer other than a corporation has a net capital loss for any taxable year (A) the excess of the net short-term capital loss over the net long-term capital gain for such year shall be a short-term capital loss in the succeeding taxable year, and (B) the excess of the net long-term capital loss over the net short-term capital gain for such year shall be a long-term capital loss in the succeeding taxable year. (2) Treatment of amounts allowed under section 1211 (b)(1) or (2) (A) In general For purposes of determining the excess referred to in subparagraph (A) or (B) of paragraph (1), there shall be treated as a short-term capital gain in the taxable year an amount equal to the lesser of (i) the amount allowed for the taxable year under paragraph (1) or (2) of section 1211 (b), or (ii) the adjusted taxable income for such taxable year. (B) Adjusted taxable income For purposes of subparagraph (A), the term adjusted taxable income means taxable income increased by the sum of (i) the amount allowed for the taxable year under paragraph (1) or (2) of section 1211 (b), and (ii) the deduction allowed for such year under section 151 or any deduction in lieu thereof.

For purposes of the preceding sentence, any excess of the deductions allowed for the taxable year over the gross income for such year shall be taken into account as negative taxable income. (c) Carryback of losses from section 1256 contracts to offset prior gains from such contracts (1) In general If a taxpayer (other than a corporation) has a net section 1256 contracts loss for the taxable year and elects to have this subsection apply to such taxable year, the amount of such net section 1256 contracts loss (A) shall be a carryback to each of the 3 taxable years preceding the loss year, and (B) to the extent that, after the application of paragraphs (2) and (3), such loss is allowed as a carryback to any such preceding taxable year (i) 40 percent of the amount so allowed shall be treated as a short-term capital loss from section 1256 contracts, and (ii) 60 percent of the amount so allowed shall be treated as a long-term capital loss from section 1256 contracts. (2) Amount carried to each taxable year The entire amount of the net section 1256 contracts loss for any taxable year shall be carried to the earliest of the taxable years to which such loss may be carried back under paragraph (1). The portion of such loss which shall be carried to each of the 2 other taxable years to which such loss may be carried back shall be the excess (if any) of such loss over the portion of such loss which, after the application of paragraph (3), was allowed as a carryback for any prior taxable year. (3) Amount which may be used in any prior taxable year An amount shall be allowed as a carryback under paragraph (1) to any prior taxable year only to the extent (A) such amount does not exceed the net section 1256 contract gain for such year, and (B) the allowance of such carryback does not increase or produce a net operating loss (as defined in section 172 (c)) for such year. (4) Net section 1256 contracts loss For purposes of paragraph (1), the term net section 1256 contracts loss means the lesser of (A) the net capital loss for the taxable year determined by taking into account only gains and losses from section 1256 contracts, or (B) the sum of the amounts which, but for paragraph (6)(A), would be treated as capital losses in the succeeding taxable year under subparagraphs (A) and (B) of subsection (b)(1). (5) Net section 1256 contract gain For purposes of paragraph (1) (A) In general The term net section 1256 contract gain means the lesser of (i) the capital gain net income for the taxable year determined by taking into account only gains and losses from section 1256contracts, or (ii) the capital gain net income for the taxable year. (B) Special rule The net section 1256 contract gain for any taxable year before the loss year shall be computed without regard to the net section 1256contracts loss for the loss year or for any taxable year thereafter. (6) Coordination with carryforward provisions of subsection (b)(1) (A) Carryforward amount reduced by amount used as carryback For purposes of applying subsection (b)(1), if any portion of the net section 1256 contracts loss for any taxable year is allowed as a carryback under paragraph (1) to any preceding taxable year (i) 40 percent of the amount allowed as a carryback shall be treated as a short-term capital gain for the loss year, and (ii) 60 percent of the amount allowed as a carryback shall be treated as a long-term capital gain for the loss year. (B) Carryover loss retains character as attributable to section 1256 contract

Any amount carried forward as a short-term or long-term capital loss to any taxable year under subsection (b)(1) (after the application of subparagraph (A)) shall, to the extent attributable to losses from section 1256 contracts, be treated as loss from section 1256contracts for such taxable year. (7) Other definitions and special rules For purposes of this subsection (A) Section 1256 contract The term section 1256 contract means any section 1256 contract (as defined in section 1256 (b)) to which section 1256 applies. (B) Exclusion for estates and trusts This subsection shall not apply to any estate or trust.

PART IIIGENERAL RULES FOR DETERMINING CAPITAL GAINS AND LOSSES


How Current is This?

1221. Capital asset defined 1222. Other terms relating to capital gains and losses 1223. Holding period of property

1221. Capital asset defined


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(a) In general For purposes of this subtitle, the term capital asset means property held by the taxpayer (whether or not connected with his trade or business), but does not include (1) stock in trade of the taxpayer or other property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the taxable year, or property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business; (2) property, used in his trade or business, of a character which is subject to the allowance for depreciation provided in section 167, or real property used in his trade or business; (3) a copyright, a literary, musical, or artistic composition, a letter or memorandum, or similar property, held by (A) a taxpayer whose personal efforts created such property, (B) in the case of a letter, memorandum, or similar property, a taxpayer for whom such property was prepared or produced, or (C) a taxpayer in whose hands the basis of such property is determined (other than by reason of section 1022), for purposes of determining gain from a sale or exchange, in whole or part by reference to the basis of such property in the hands of a taxpayer described in subparagraph (A) or (B); (4) accounts or notes receivable acquired in the ordinary course of trade or business for services rendered or from the sale of property described in paragraph (1); (5) a publication of the United States Government (including the Congressional Record) which is received from the United States Government or any agency thereof, other than by purchase at the price at which it is offered for sale to the public, and which is held by (A) a taxpayer who so received such publication, or

(B) a taxpayer in whose hands the basis of such publication is determined, for purposes of determining gain from a sale or exchange, in whole or in part by reference to the basis of such publication in the hands of a taxpayer described in subparagraph (A); (6) any commodities derivative financial instrument held by a commodities derivatives dealer, unless (A) it is established to the satisfaction of the Secretary that such instrument has no connection to the activities of such dealer as a dealer, and (B) such instrument is clearly identified in such dealers records as being described in subparagraph (A) before the close of the day on which it was acquired, originated, or entered into (or such other time as the Secretary may by regulations prescribe); (7) any hedging transaction which is clearly identified as such before the close of the day on which it was acquired, originated, or entered into (or such other time as the Secretary may by regulations prescribe); or (8) supplies of a type regularly used or consumed by the taxpayer in the ordinary course of a trade or business of the taxpayer. (b) Definitions and special rules (1) Commodities derivative financial instruments For purposes of subsection (a)(6) (A) Commodities derivatives dealer The term commodities derivatives dealer means a person which [1]regularly offers to enter into, assume, offset, assign, or terminate positions in commodities derivative financial instruments with customers in the ordinary course of a trade or business. (B) Commodities derivative financial instrument (i) In general The term commodities derivative financial instrument means any contract or financial instrument with respect to commodities (other than a share of stock in a corporation, a beneficial interest in a partnership or trust, a note, bond, debenture, or other evidence of indebtedness, or a section1256 contract (as defined in section 1256 (b))), the value or settlement price of which is calculated by or determined by reference to a specified index. (ii) Specified index The term specified index means any one or more or any combination of (I) a fixed rate, price, or amount, or (II) a variable rate, price, or amount, which is based on any current, objectively determinable financial or economic information with respect to commodities which is not within the control of any of the parties to the contract or instrument and is not unique to any of the parties circumstances. (2) Hedging transaction (A) In general For purposes of this section, the term hedging transaction means any transaction entered into by the taxpayer in the normal course of the taxpayers trade or business primarily (i) to manage risk of price changes or currency fluctuations with respect to ordinary property which is held or to be held by the taxpayer, (ii) to manage risk of interest rate or price changes or currency fluctuations with respect to borrowings made or to be made, or ordinary obligations incurred or to be incurred, by the taxpayer, or (iii) to manage such other risks as the Secretary may prescribe in regulations. (B) Treatment of nonidentification or improper identification of hedging transactions Notwithstanding subsection (a)(7), the Secretary shall prescribe regulations to properly characterize any income, gain, expense, or loss arising from a transaction (i) which is a hedging transaction but which was not identified as such in accordance with subsection (a)(7), or (ii) which was so identified but is not a hedging transaction. (3) Sale or exchange of self-created musical works At the election of the taxpayer, paragraphs (1) and (3) of subsection (a) shall not apply to musical compositions or copyrights in musical works sold or exchanged by a taxpayer described in subsection (a)(3). (4) Regulations

The Secretary shall prescribe such regulations as are appropriate to carry out the purposes of paragraph (6) and (7) of subsection (a) in the case of transactions involving related parties.

[1] So in original. Probably should be who.

1222. Other terms relating to capital gains and losses


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For purposes of this subtitle (1) Short-term capital gain The term short-term capital gain means gain from the sale or exchange of a capital asset held for not more than 1 year, if and to the extent such gain is taken into account in computing gross income. (2) Short-term capital loss The term short-term capital loss means loss from the sale or exchange of a capital asset held for not more than 1 year, if and to the extent that such loss is taken into account in computing taxable income. (3) Long-term capital gain The term long-term capital gain means gain from the sale or exchange of a capital asset held for more than 1 year, if and to the extent such gain is taken into account in computing gross income. (4) Long-term capital loss The term long-term capital loss means loss from the sale or exchange of a capital asset held for more than 1 year, if and to the extent that such loss is taken into account in computing taxable income. (5) Net short-term capital gain The term net short-term capital gain means the excess of short-term capital gains for the taxable year over the short-term capital losses for such year. (6) Net short-term capital loss The term net short-term capital loss means the excess of short-term capital losses for the taxable year over the short-term capital gains for such year. (7) Net long-term capital gain The term net long-term capital gain means the excess of long-term capital gains for the taxable year over the long-term capital losses for such year. (8) Net long-term capital loss The term net long-term capital loss means the excess of long-term capital losses for the taxable year over the long-term capital gains for such year. (9) Capital gain net income The term capital gain net income means the excess of the gains from sales or exchanges of capital assets over the losses from such sales or exchanges. (10) Net capital loss The term net capital loss means the excess of the losses from sales or exchanges of capital assets over the sum allowed under section 1211. In the case of a corporation, for the purpose of determining losses under this paragraph, amounts which are short-term capital losses under section 1212shall be excluded. (11) Net capital gain The term net capital gain means the excess of the net long-term capital gain for the taxable year over the net short-term capital loss for such year. For purposes of this subtitle, in the case of futures transactions in any commodity subject to the rules of a board of trade or commodity exchange, the length of the holding period taken into account under this section or under any other section amended by section 1402 of the

Tax Reform Act of 1976 shall be determined without regard to the amendments made by subsections (a) and (b) of such section 1402.

1223. Holding period of property


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For purposes of this subtitle (1) In determining the period for which the taxpayer has held property received in an exchange, there shall be included the period for which he held the property exchanged if, under this chapter, the property has, for the purpose of determining gain or loss from a sale or exchange, the same basis in whole or in part in his hands as the property exchanged, and, in the case of such exchanges after March 1, 1954, the property exchanged at the time of such exchange was a capital asset as defined in section 1221 or property described in section 1231. For purposes of this paragraph (A) an involuntary conversion described in section 1033 shall be considered an exchange of the property converted for the property acquired, and (B) a distribution to which section 355 (or so much of section 356 as relates to section 355) applies shall be treated as an exchange. (2) In determining the period for which the taxpayer has held property however acquired there shall be included the period for which such property was held by any other person, if under this chapter such property has, for the purpose of determining gain or loss from a sale or exchange, the same basis in whole or in part in his hands as it would have in the hands of such other person. (3) In determining the period for which the taxpayer has held stock or securities the acquisition of which (or the contract or option to acquire which) resulted in the nondeductibility (under section 1091 relating to wash sales) of the loss from the sale or other disposition of substantially identical stock or securities, there shall be included the period for which he held the stock or securities the loss from the sale or other disposition of which was not deductible. (4) In determining the period for which the taxpayer has held stock or rights to acquire stock received on a distribution, if the basis of such stock or rights is determined under section 307 (or under so much of section 1052 (c) as refers to section 113(a)(23) of the Internal Revenue Code of 1939), there shall (under regulations prescribed by the Secretary) be included the period for which he held the stock in the distributing corporation before the receipt of such stock or rights upon such distribution. (5) In determining the period for which the taxpayer has held stock or securities acquired from a corporation by the exercise of rights to acquire such stock or securities, there shall be included only the period beginning with the date on which the right to acquire was exercised. (6) In determining the period for which the taxpayer has held a residence, the acquisition of which resulted under section 1034 (as in effect on the day before the date of the enactment of the Taxpayer Relief Act of 1997) in the nonrecognition of any part of the gain realized on the sale or exchange of another residence, there shall be included the period for which such other residence had been held as of the date of such sale or exchange. For purposes of this paragraph, the term sale or exchange includes an involuntary conversion occurring after December 31, 1950, and before January 1, 1954. (7) In determining the period for which the taxpayer has held a commodity acquired in satisfaction of a commodity futures contract (other than a commodity futures contract to which section 1256 applies) there shall be included the period for which he held the commodity futures contract if such commodity futures contract was a capital asset in his hands. (8) Any reference in this section to a provision of this title shall, where applicable, be deemed a reference to the corresponding provision of the Internal Revenue Code of 1939, or prior internal revenue laws. (9) In the case of a person acquiring property from a decedent or to whom property passed from a decedent (within the meaning of section 1014 (b)), if

(A) the basis of such property in the hands of such person is determined under section 1014, and (B) such property is sold or otherwise disposed of by such person within 1 year after the decedents death, then such person shall be considered to have held such property for more than 1 year. (10) If (A) property is acquired by any person in a transfer to which section 1040applies, (B) such property is sold or otherwise disposed of by such person within 1 year after the decedents death, and (C) such sale or disposition is to a person who is a qualified heir (as defined in section 2032A (e)(1)) with respect to the decedent, then the person making such sale or other disposition shall be considered to have held such property for more than 1 year. (11) In determining the period for which the taxpayer has held qualified replacement property (within the meaning of section 1042 (b)) the acquisition of which resulted under section 1042 in the nonrecognition of any part of the gain realized on the sale of qualified securities (within the meaning of section 1042(b)), there shall be included the period for which such qualified securities had been held by the taxpayer. (12) In determining the period for which the taxpayer has held property the acquisition of which resulted under section 1043 in the nonrecognition of any part of the gain realized on the sale of other property, there shall be included the period for which such other property had been held as of the date of such sale. (13) Except for purposes of sections 1202 (a)(2), 1202 (c)(2)(A), 1400B (b), and 1400F (b), in determining the period for which the taxpayer has held property the acquisition of which resulted under section 1045 or 1397B in the nonrecognition of any part of the gain realized on the sale of other property, there shall be included the period for which such other property has been held as of the date of such sale. (14) If the security to which a securities futures contract (as defined in section1234B) relates (other than a contract to which section 1256 applies) is acquired in satisfaction of such contract, in determining the period for which the taxpayer has held such security, there shall be included the period for which the taxpayer held such contract if such contract was a capital asset in the hands of the taxpayer. (15) Cross reference. For special holding period provision relating to certain partnership distributions, see section 735 (b).

ART IVSPECIAL RULES FOR DETERMINING CAPITAL GAINS AND LOSSES


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1231. Property used in the trade or business and involuntary conversions [ 1232 to 1232B. Repealed.] 1233. Gains and losses from short sales 1234. Options to buy or sell 1234A. Gains or losses from certain terminations 1234B. Gains or losses from securities futures contracts 1235. Sale or exchange of patents

1236. Dealers in securities 1237. Real property subdivided for sale [ 1238. Repealed.]

1239. Gain from sale of depreciable property between certain related taxpayers [ 1240. Repealed.] 1241. Cancellation of lease or distributors agreement 1242. Losses on small business investment company stock 1243. Loss of small business investment company 1244. Losses on small business stock 1245. Gain from dispositions of certain depreciable property [ 1246, 1247. Repealed.]

1248. Gain from certain sales or exchanges of stock in certain foreign corporations 1249. Gain from certain sales or exchanges of patents, etc., to foreign corporations 1250. Gain from dispositions of certain depreciable realty [ 1251. Repealed.] 1252. Gain from disposition of farm land 1253. Transfers of franchises, trademarks, and trade names

1254. Gain from disposition of interest in oil, gas, geothermal, or other mineral properties 1255. Gain from disposition of section 126 property 1256. Section 1256 contracts marked to market 1257. Disposition of converted wetlands or highly erodible croplands 1258. Recharacterization of gain from certain financial transactions 1259. Constructive sales treatment for appreciated financial positions 1260. Gains from constructive ownership transactions

1231. Property used in the trade or business and involuntary conversions


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(a) General rule

(1) Gains exceed losses If (A) the section 1231 gains for any taxable year, exceed (B) the section 1231 losses for such taxable year, such gains and losses shall be treated as long-term capital gains or long-term capital losses, as the case may be. (2) Gains do not exceed losses If (A) the section 1231 gains for any taxable year, do not exceed (B) the section 1231 losses for such taxable year, such gains and losses shall not be treated as gains and losses from sales or exchanges of capital assets. (3) Section 1231 gains and losses For purposes of this subsection (A) Section 1231 gain The term section 1231 gain means (i) any recognized gain on the sale or exchange of property used in the trade or business, and (ii) any recognized gain from the compulsory or involuntary conversion (as a result of destruction in whole or in part, theft or seizure, or an exercise of the power of requisition or condemnation or the threat or imminence thereof) into other property or money of (I) property used in the trade or business, or (II) any capital asset which is held for more than 1 year and is held in connection with a trade or business or a transaction entered into for profit. (B) Section 1231 loss The term section 1231 loss means any recognized loss from a sale or exchange or conversion described in subparagraph (A). (4) Special rules For purposes of this subsection (A) In determining under this subsection whether gains exceed losses (i) the section 1231 gains shall be included only if and to the extent taken into account in computing gross income, and (ii) the section 1231 losses shall be included only if and to the extent taken into account in computing taxable income, except that section 1211 shall not apply. (B) Losses (including losses not compensated for by insurance or otherwise) on the destruction, in whole or in part, theft or seizure, or requisition or condemnation of (i) property used in the trade or business, or (ii) capital assets which are held for more than 1 year and are held in connection with a trade or business or a transaction entered into for profit, shall be treated as losses from a compulsory or involuntary conversion. (C) In the case of any involuntary conversion (subject to the provisions of this subsection but for this sentence) arising from fire, storm, shipwreck, or other casualty, or from theft, of any (i) property used in the trade or business, or (ii) any capital asset which is held for more than 1 year and is held in connection with a trade or business or a transaction entered into for profit, this subsection shall not apply to such conversion (whether resulting in gain or loss) if during the taxable year the recognized losses from such conversions exceed the recognized gains from such conversions. (b) Definition of property used in the trade or business For purposes of this section (1) General rule The term property used in the trade or business means property used in the trade or business, of a character which is subject to the allowance for depreciation provided in section 167, held for more than 1 year, and real property used in the trade or business, held for more than 1 year, which is not (A) property of a kind which would properly be includible in the inventory of the taxpayer if on hand at the close of the taxable year,

(B) property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business, (C) a copyright, a literary, musical, or artistic composition, a letter or memorandum, or similar property, held by a taxpayer described in paragraph (3) of section 1221 (a), or (D) a publication of the United States Government (including the Congressional Record) which is received from the United States Government, or any agency thereof, other than by purchase at the price at which it is offered for sale to the public, and which is held by a taxpayer described in paragraph (5) of section 1221 (a). (2) Timber, coal, or domestic iron ore Such term includes timber, coal, and iron ore with respect to which section 631 applies. (3) Livestock Such term includes (A) cattle and horses, regardless of age, held by the taxpayer for draft, breeding, dairy, or sporting purposes, and held by him for 24 months or more from the date of acquisition, and (B) other livestock, regardless of age, held by the taxpayer for draft, breeding, dairy, or sporting purposes, and held by him for 12 months or more from the date of acquisition. Such term does not include poultry. (4) Unharvested crop In the case of an unharvested crop on land used in the trade or business and held for more than 1 year, if the crop and the land are sold or exchanged (or compulsorily or involuntarily converted) at the same time and to the same person, the crop shall be considered as property used in the trade or business. (c) Recapture of net ordinary losses (1) In general The net section 1231 gain for any taxable year shall be treated as ordinary income to the extent such gain does not exceed the non-recaptured net section 1231 losses. (2) Non-recaptured net section 1231 losses For purposes of this subsection, the term non-recaptured net section1231 losses means the excess of (A) the aggregate amount of the net section 1231 losses for the 5 most recent preceding taxable years beginning after December 31, 1981, over (B) the portion of such losses taken into account under paragraph (1) for such preceding taxable years. (3) Net section 1231 gain For purposes of this subsection, the term net section 1231 gain means the excess of (A) the section 1231 gains, over (B) the section 1231 losses. (4) Net section 1231 loss For purposes of this subsection, the term net section 1231 loss means the excess of (A) the section 1231 losses, over (B) the section 1231 gains. (5) Special rules For purposes of determining the amount of the net section 1231 gain or loss for any taxable year, the rules of paragraph (4) of subsection (a) shall apply.

1232 to 1232B. Repealed. Pub. L. 98369, div. A, title I, 42(a)(1), July 18, 1984, 98 Stat. 556]
How Current is This?

Section 1232, acts Aug. 16, 1954, ch. 736, 68A Stat. 326; Sept. 2, 1958, Pub. L. 85866, title I, 50(a), 51, 72 Stat. 1642, 1643; June 25, 1959, Pub. L. 8669, 3(e), 73 Stat. 140; Sept. 2, 1964, Pub. L. 88563, 5, 78 Stat. 845; Dec. 30, 1969, Pub. L. 91172, title

IV, 413(a), (b), 83 Stat. 609, 611; Oct. 4, 1976, Pub. L. 94455, title XIV, 1402(b)(1) (S), (2), title XIX, 1901(b)(3)(I), (14)(D), 1904 (b)(10)(C), 90 Stat. 1732, 1793, 1796, 1817; Aug. 13, 1981, Pub. L. 9734, title V, 505(b), 95 Stat. 331; Sept. 3, 1982, Pub. L. 97248, title II, 231(c), 232 (b), title III, 310(b)(6), 96 Stat. 499, 501, 599; Jan. 12, 1983, Pub. L. 97448, title III, 306(a)(9)(B), (C)(i), (ii), 96 Stat. 2403, 2404; July 18, 1984, Pub. L. 98369, div. A, title X, 1001(b)(16), (d), (e), 98 Stat. 1012, related to bonds and other evidences of indebtedness. See section 1271 et seq. of this title. Section 1232A, added Pub. L. 97248, title II, 231(a), Sept. 3, 1982, 96 Stat. 496; amended Pub. L. 98369, div. A, title II, 211(b)(17), July 18, 1984, 98 Stat. 756, related to original issue discount. See section 1271 et seq. of this title. Section 1232B, added Pub. L. 97248, title II, 232(a), Sept. 3, 1982, 96 Stat. 499, related to stripped bonds. See section 1286 of this title.

1233. Gains and losses from short sales


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(a) Capital assets For purposes of this subtitle, gain or loss from the short sale of property shall be considered as gain or loss from the sale or exchange of a capital asset to the extent that the property, including a commodity future, used to close the short sale constitutes a capital asset in the hands of the taxpayer. (b) Short-term gains and holding periods If gain or loss from a short sale is considered as gain or loss from the sale or exchange of a capital asset under subsection (a) and if on the date of such short sale substantially identical property has been held by the taxpayer for not more than 1 year (determined without regard to the effect, under paragraph (2) of this subsection, of such short sale on the holding period), or if substantially identical property is acquired by the taxpayer after such short sale and on or before the date of the closing thereof (1) any gain on the closing of such short sale shall be considered as a gain on the sale or exchange of a capital asset held for not more than 1 year (notwithstanding the period of time any property used to close such short sale has been held); and (2) the holding period of such substantially identical property shall be considered to begin (notwithstanding section 1223, relating to the holding period of property) on the date of the closing of the short sale, or on the date of a sale, gift, or other disposition of such property, whichever date occurs first. This paragraph shall apply to such substantially identical property in the order of the dates of the acquisition of such property, but only to so much of such property as does not exceed the quantity sold short. For purposes of this subsection, the acquisition of an option to sell property at a fixed price shall be considered as a short sale, and the exercise or failure to exercise such option shall be considered as a closing of such short sale. (c) Certain options to sell Subsection (b) shall not include an option to sell property at a fixed price acquired on the same day on which the property identified as intended to be used in exercising such option is acquired and which, if exercised, is exercised through the sale of the property so identified. If the option is not exercised, the cost of the option shall be added to the basis of the property with which the option is identified. This subsection shall apply only to options acquired after August 16, 1954. (d) Long-term losses If on the date of such short sale substantially identical property has been held by the taxpayer for more than 1 year, any loss on the closing of such short sale shall be considered as a loss on the sale or exchange of a capital asset held for more than 1 year (notwithstanding the period of time any property used to close such short sale has been held, and notwithstanding section1234). (e) Rules for application of section

(1) Subsection (b)(1) or (d) shall not apply to the gain or loss, respectively, on any quantity of property used to close such short sale which is in excess of the quantity of the substantially identical property referred to in the applicable subsection. (2) For purposes of subsections (b) and (d) (A) the term property includes only stocks and securities (including stocks and securities dealt with on a when issued basis), and commodity futures, which are capital assets in the hands of the taxpayer, but does not include any position to which section 1092 (b)applies; (B) in the case of futures transactions in any commodity on or subject to the rules of a board of trade or commodity exchange, a commodity future requiring delivery in 1 calendar month shall not be considered as property substantially identical to another commodity future requiring delivery in a different calendar month; (C) in the case of a short sale of property by an individual, the term taxpayer, in the application of this subsection and subsections (b) and (d), shall be read as taxpayer or his spouse; but an individual who is legally separated from the taxpayer under a decree of divorce or of separate maintenance shall not be considered as the spouse of the taxpayer; (D) a securities futures contract (as defined in section 1234B) to acquire substantially identical property shall be treated as substantially identical property; and (E) entering into a securities futures contract (as so defined) to sell shall be considered to be a short sale, and the settlement of such contract shall be considered to be the closing of such short sale. (3) Where the taxpayer enters into 2 commodity futures transactions on the same day, one requiring delivery by him in one market and the other requiring delivery to him of the same (or substantially identical) commodity in the same calendar month in a different market, and the taxpayer subsequently closes both such transactions on the same day, subsections (b) and (d) shall have no application to so much of the commodity involved in either such transaction as does not exceed in quantity the commodity involved in the other. (4) (A) In the case of a taxpayer who is a dealer in securities (within the meaning of section 1236) (i) if, on the date of a short sale of stock, substantially identical property which is a capital asset in the hands of the taxpayer has been held for not more than 1 year, and (ii) if such short sale is closed more than 20 days after the date on which it was made, subsection (b)(2) shall apply in respect of the holding period of such substantially identical property. (B) For purposes of subparagraph (A) (i) the last sentence of subsection (b) applies; and (ii) the term stock means any share or certificate of stock in a corporation, any bond or other evidence of indebtedness which is convertible into any such share or certificate, or any evidence of an interest in, or right to subscribe to or purchase, any of the foregoing. (f) Arbitrage operations in securities In the case of a short sale which had been entered into as an arbitrage operation, to which sale the rule of subsection (b)(2) would apply except as otherwise provided in this subsection (1) subsection (b)(2) shall apply first to substantially identical assets acquired for arbitrage operations held at the close of business on the day such sale is made, and only to the extent that the quantity sold short exceeds the substantially identical assets acquired for arbitrage operations held at the close of business on the day such sale is made, shall the holding period of any other such identical assets held by the taxpayer be affected; (2) in the event that assets acquired for arbitrage operations are disposed of in such manner as to create a net short position in assets acquired for arbitrage operations, such net short position shall be deemed to constitute a short sale made on that day; (3) for the purpose of paragraphs (1) and (2) of this subsection the taxpayer will be deemed as of the close of any business day to hold property which he is or will be entitled to receive or acquire by virtue of any other asset acquired for arbitrage operations or by virtue of any contract he has entered into in an arbitrage operation; and (4) for the purpose of this subsection arbitrage operations are transactions involving the purchase and sale of assets for the purpose of profiting from a current difference between the price of the asset purchased and the price of the asset sold, and in which the asset

purchased, if not identical to the asset sold, is such that by virtue thereof the taxpayer is, or will be, entitled to acquire assets identical to the assets sold. Such operations must be clearly identified by the taxpayer in his records as arbitrage operations on the day of the transaction or as soon thereafter as may be practicable. Assets acquired for arbitrage operations will include stocks and securities and the right to acquire stocks and securities. (g) Hedging transactions This section shall not apply in the case of a hedging transaction in commodity futures. (h) Short sales of property which becomes substantially worthless (1) In general If (A) the taxpayer enters into a short sale of property, and (B) such property becomes substantially worthless, the taxpayer shall recognize gain in the same manner as if the short sale were closed when the property becomes substantially worthless. To the extent provided in regulations prescribed by the Secretary, the preceding sentence also shall apply with respect to any option with respect to property, any offsetting notional principal contract with respect to property, any futures or forward contract to deliver any property, and any other similar transaction. (2) Statute of limitations If property becomes substantially worthless during a taxable year and any short sale of such property remains open at the time such property becomes substantially worthless, then (A) the statutory period for the assessment of any deficiency attributable to any part of the gain on such transaction shall not expire before the earlier of (i) the date which is 3 years after the date the Secretary is notified by the taxpayer (in such manner as the Secretary may by regulations prescribe) of the substantial worthlessness of such property, or (ii) the date which is 6 years after the date the return for such taxable year is filed, and (B) such deficiency may be assessed before the date applicable under subparagraph (A) notwithstanding the provisions of any other law or rule of law which would otherwise prevent such assessment.

1234. Options to buy or sell


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(a) Treatment of gain or loss in the case of the purchaser (1) General rule Gain or loss attributable to the sale or exchange of, or loss attributable to failure to exercise, an option to buy or sell property shall be considered gain or loss from the sale or exchange of property which has the same character as the property to which the option relates has in the hands of the taxpayer (or would have in the hands of the taxpayer if acquired by him). (2) Special rule for loss attributable to failure to exercise option For purposes of paragraph (1), if loss is attributable to failure to exercise an option, the option shall be deemed to have been sold or exchanged on the day it expired. (3) Nonapplication of subsection This subsection shall not apply to (A) an option which constitutes property described in paragraph (1) of section 1221 (a); (B) in the case of gain attributable to the sale or exchange of an option, any income derived in connection with such option which, without regard to this subsection, is treated as other than gain from the sale or exchange of a capital asset; and (C) a loss attributable to failure to exercise an option described in section 1233 (c). (b) Treatment of grantor of option in the case of stock, securities, or commodities (1) General rule In the case of the grantor of the option, gain or loss from any closing transaction with respect to, and gain on lapse of, an option in property shall be treated as a gain or loss from the sale or exchange of a capital asset held not more than 1 year. (2) Definitions For purposes of this subsection

(A) Closing transaction The term closing transaction means any termination of the taxpayers obligation under an option in property other than through the exercise or lapse of the option. (B) Property The term property means stocks and securities (including stocks and securities dealt with on a when issued basis), commodities, and commodity futures. (3) Nonapplication of subsection This subsection shall not apply to any option granted in the ordinary course of the taxpayers trade or business of granting options. (c) Treatment of options on section 1256 contracts and cash settlement options (1) Section 1256 contracts Gain or loss shall be recognized on the exercise of an option on a section1256 contract (within the meaning of section 1256 (b)). (2) Treatment of cash settlement options (A) In general For purposes of subsections (a) and (b), a cash settlement option shall be treated as an option to buy or sell property. (B) Cash settlement option For purposes of subparagraph (A), the term cash settlement option means any option which on exercise settles in (or could be settled in) cash or property other than the underlying property.

1234A. Gains or losses from certain terminations


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Gain or loss attributable to the cancellation, lapse, expiration, or other termination of (1) a right or obligation (other than a securities futures contract, as defined in section 1234B) with respect to property which is (or on acquisition would be) a capital asset in the hands of the taxpayer, or (2) a section 1256 contract (as defined in section 1256) not described in paragraph (1) which is a capital asset in the hands of the taxpayer, shall be treated as gain or loss from the sale of a capital asset. The preceding sentence shall not apply to the retirement of any debt instrument (whether or not through a trust or other participation arrangement).

1234B. Gains or losses from securities futures contracts


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(a) Treatment of gain or loss (1) In general Gain or loss attributable to the sale, exchange, or termination of a securities futures contract shall be considered gain or loss from the sale or exchange of property which has the same character as the property to which the contract relates has in the hands of the taxpayer (or would have in the hands of the taxpayer if acquired by the taxpayer). (2) Nonapplication of subsection This subsection shall not apply to (A) a contract which constitutes property described in paragraph (1) or (7) of section 1221 (a), and

(B) any income derived in connection with a contract which, without regard to this subsection, is treated as other than gain from the sale or exchange of a capital asset. (b) Short-term gains and losses Except as provided in the regulations under section 1092 (b) or this section, or in section 1233, if gain or loss on the sale, exchange, or termination of a securities futures contract to sell property is considered as gain or loss from the sale or exchange of a capital asset, such gain or loss shall be treated as short-term capital gain or loss. (c) Securities futures contract For purposes of this section, the term securities futures contract means any security future (as defined in section 3(a)(55)(A) of the Securities Exchange Act of 1934, as in effect on the date of the enactment of this section). The Secretary may prescribe regulations regarding the status of contracts the values of which are determined directly or indirectly by reference to any index which becomes (or ceases to be) a narrow-based security index (as defined for purposes of section 1256 (g)(6)). (d) Contracts not treated as commodity futures contracts For purposes of this title, a securities futures contract shall not be treated as a commodity futures contract. (e) Regulations The Secretary shall prescribe such regulations as may be appropriate to provide for the proper treatment of securities futures contracts under this title. (f) Cross reference For special rules relating to dealer securities futures contracts, see section 1256.

1235. Sale or exchange of patents


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(a) General A transfer (other than by gift, inheritance, or devise) of property consisting of all substantial rights to a patent, or an undivided interest therein which includes a part of all such rights, by any holder shall be considered the sale or exchange of a capital asset held for more than 1 year, regardless of whether or not payments in consideration of such transfer are (1) payable periodically over a period generally coterminous with the transferees use of the patent, or (2) contingent on the productivity, use, or disposition of the property transferred. (b) Holder defined For purposes of this section, the term holder means (1) any individual whose efforts created such property, or (2) any other individual who has acquired his interest in such property in exchange for consideration in money or moneys worth paid to such creator prior to actual reduction to practice of the invention covered by the patent, if such individual is neither (A) the employer of such creator, nor (B) related to such creator (within the meaning of subsection (d)). (c) Effective date This section shall be applicable with regard to any amounts received, or payments made, pursuant to a transfer described in subsection (a) in any taxable year to which this subtitle applies, regardless of the taxable year in which such transfer occurred. (d) Related persons Subsection (a) shall not apply to any transfer, directly or indirectly, between persons specified within any one of the paragraphs of section 267 (b) or persons described in section 707 (b); except that, in applying section 267 (b)and (c) and section 707 (b) for purposes of this section (1) the phrase 25 percent or more shall be substituted for the phrase more than 50 percent each place it appears in section 267 (b) or 707 (b), and (2) paragraph (4) of section 267 (c) shall be treated as providing that the family of an individual shall include only his spouse, ancestors, and lineal descendants. (e) Cross reference For special rule relating to nonresident aliens, see section 871 (a).

1236. Dealers in securities


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(a) Capital gains Gain by a dealer in securities from the sale or exchange of any security shall in no event be considered as gain from the sale or exchange of a capital asset unless (1) the security was, before the close of the day on which it was acquired (or such earlier time as the Secretary may prescribe by regulations), clearly identified in the dealers records as a security held for investment; and (2) the security was not, at any time after the close of such day (or such earlier time), held by such dealer primarily for sale to customers in the ordinary course of his trade or business. (b) Ordinary losses Loss by a dealer in securities from the sale or exchange of any security shall, except as otherwise provided in section 582 (c), (relating to bond, etc., losses of banks), in no event be considered as ordinary loss if at any time after November 19, 1951, the security was clearly identified in the dealers records as a security held for investment. (c) Definition of security For purposes of this section, the term security means any share of stock in any corporation, certificate of stock or interest in any corporation, note, bond, debenture, or evidence of indebtedness, or any evidence of an interest in or right to subscribe to or purchase any of the foregoing. (d) Special rule for floor specialists (1) In general In the case of a floor specialist (but only with respect to acquisitions, in connection with his duties on an exchange, of stock in which the specialist is registered with the exchange), subsection (a) shall be applied (A) by inserting the 7th business day following before the day the first place it appears in paragraph (1) and by inserting 7th business before day in paragraph (2), and (B) by striking the parenthetical phrase in paragraph (1). (2) Floor specialist The term floor specialist means a person who is (A) a member of a national securities exchange, (B) is registered as a specialist with the exchange, and (C) meets the requirements for specialists established by the Securities and Exchange Commission. (e) Special rule for options For purposes of subsection (a), any security acquired by a dealer pursuant to an option held by such dealer may be treated as held for investment only if the dealer, before the close of the day on which the option was acquired, clearly identified the option on his records as held for investment. For purposes of the preceding sentence, the term option includes the right to subscribe to or purchase any security.

1237. Real property subdivided for sale


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(a) General Any lot or parcel which is part of a tract of real property in the hands of a taxpayer other than a C corporation shall not be deemed to be held primarily for sale to customers in the ordinary course of trade or business at the time of sale solely because of the taxpayer having subdivided such tract for purposes of sale or because of any activity incident to such subdivision or sale, if

(1) such tract, or any lot or parcel thereof, had not previously been held by such taxpayer primarily for sale to customers in the ordinary course of trade or business (unless such tract at such previous time would have been covered by this section) and, in the same taxable year in which the sale occurs, such taxpayer does not so hold any other real property; and (2) no substantial improvement that substantially enhances the value of the lot or parcel sold is made by the taxpayer on such tract while held by the taxpayer or is made pursuant to a contract of sale entered into between the taxpayer and the buyer. For purposes of this paragraph, an improvement shall be deemed to be made by the taxpayer if such improvement was made by (A) the taxpayer or members of his family (as defined in section 267(c)(4)), by a corporation controlled by the taxpayer, an S corporation which included the taxpayer as a shareholder, or by a partnership which included the taxpayer as a partner; or (B) a lessee, but only if the improvement constitutes income to the taxpayer; or (C) Federal, State, or local government, or political subdivision thereof, but only if the improvement constitutes an addition to basis for the taxpayer; and (3) such lot or parcel, except in the case of real property acquired by inheritance or devise, is held by the taxpayer for a period of 5 years. (b) Special rules for application of section (1) Gains If more than 5 lots or parcels contained in the same tract of real property are sold or exchanged, gain from any sale or exchange (which occurs in or after the taxable year in which the sixth lot or parcel is sold or exchanged) of any lot or parcel which comes within the provisions of paragraphs (1), (2) and (3) of subsection (a) of this section shall be deemed to be gain from the sale of property held primarily for sale to customers in the ordinary course of the trade or business to the extent of 5 percent of the selling price. (2) Expenditures of sale For the purpose of computing gain under paragraph (1) of this subsection, expenditures incurred in connection with the sale or exchange of any lot or parcel shall neither be allowed as a deduction in computing taxable income, nor treated as reducing the amount realized on such sale or exchange; but so much of such expenditures as does not exceed the portion of gain deemed under paragraph (1) of this subsection to be gain from the sale of property held primarily for sale to customers in the ordinary course of trade or business shall be so allowed as a deduction, and the remainder, if any, shall be treated as reducing the amount realized on such sale or exchange. (3) Necessary improvements No improvement shall be deemed a substantial improvement for purposes of subsection (a) if the lot or parcel is held by the taxpayer for a period of 10 years and if (A) such improvement is the building or installation of water, sewer, or drainage facilities or roads (if such improvement would except for this paragraph constitute a substantial improvement); (B) it is shown to the satisfaction of the Secretary that the lot or parcel, the value of which was substantially enhanced by such improvement, would not have been marketable at the prevailing local price for similar building sites without such improvement; and (C) the taxpayer elects, in accordance with regulations prescribed by the Secretary, to make no adjustment to basis of the lot or parcel, or of any other property owned by the taxpayer, on account of the expenditures for such improvements. Such election shall not make any item deductible which would not otherwise be deductible. (c) Tract defined For purposes of this section, the term tract of real property means a single piece of real property, except that 2 or more pieces of real property shall be considered a tract if at any time they were contiguous in the hands of the taxpayer or if they would be contiguous except for the interposition of a road, street, railroad, stream, or similar property. If, following the sale or exchange of any lot or parcel from a tract of real property, no further sales or exchanges of any other lots or parcels from the remainder of such tract are made for a period of 5 years, such remainder shall be deemed a tract.

1238. Repealed. Pub. L. 101508, title XI, 11801(a)(35), Nov. 5, 1990, 104 Stat. 1388 521]
How Current is This?

Section, acts Aug. 16, 1954, ch. 736, 68A Stat. 332; Oct. 4, 1976, Pub. L. 94455, title XIX, 1901(b)(3)(K), 1951 (c)(2)(A), 90 Stat. 1793, 1840, related to amortization in excess of depreciation.

1239. Gain from sale of depreciable property between certain related taxpayers
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(a) Treatment of gain as ordinary income In the case of a sale or exchange of property, directly or indirectly, between related persons, any gain recognized to the transferor shall be treated as ordinary income if such property is, in the hands of the transferee, of a character which is subject to the allowance for depreciation provided in section 167. (b) Related persons For purposes of subsection (a), the term related persons means (1) a person and all entities which are controlled entities with respect to such person, (2) a taxpayer and any trust in which such taxpayer (or his spouse) is a beneficiary, unless such beneficiarys interest in the trust is a remote contingent interest (within the meaning of section 318 (a)(3)(B)(i)), and (3) except in the case of a sale or exchange in satisfaction of a pecuniary bequest, an executor of an estate and a beneficiary of such estate. (c) Controlled entity defined (1) General rule For purposes of this section, the term controlled entity means, with respect to any person (A) a corporation more than 50 percent of the value of the outstanding stock of which is owned (directly or indirectly) by or for such person, (B) a partnership more than 50 percent of the capital interest or profits interest in which is owned (directly or indirectly) by or for such person, and (C) any entity which is a related person to such person under paragraph (3), (10), (11), or (12) of section 267 (b). (2) Constructive ownership For purposes of this section, ownership shall be determined in accordance with rules similar to the rules under section 267 (c) (other than paragraph (3) thereof). (d) Employer and related employee association For purposes of subsection (a), the term related person also includes (1) an employer and any person related to the employer (within the meaning of subsection (b)), and (2) a welfare benefit fund (within the meaning of section 419 (e)) which is controlled directly or indirectly by persons referred to in paragraph (1). (e) Patent applications treated as depreciable property For purposes of this section, a patent application shall be treated as property which, in the hands of the transferee, is of a character which is subject to the allowance for depreciation provided in section 167.

1240. Repealed. Pub. L. 94455, title XIX, 1901(a)(139), Oct. 4, 1976, 90 Stat. 1787]
How Current is This?

Section, act Aug. 16, 1954, ch. 736, 68A Stat. 332, related to taxability to employee of termination payments.

1241. Cancellation of lease or distributors agreement


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Amounts received by a lessee for the cancellation of a lease, or by a distributor of goods for the cancellation of a distributors agreement (if the distributor has a substantial capital investment in the distributorship), shall be considered as amounts received in exchange for such lease or agreement.

1242. Losses on small business investment company stock


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If (1) a loss is on stock in a small business investment company operating under the Small Business Investment Act of 1958, and (2) such loss would (but for this section) be a loss from the sale or exchange of a capital asset, then such loss shall be treated as an ordinary loss. For purposes of section 172(relating to the net operating loss deduction) any amount of loss treated by reason of this section as an ordinary loss shall be treated as attributable to a trade or business of the taxpayer.

1243. Loss of small business investment company


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In the case of a small business investment company operating under the Small Business Investment Act of 1958, if (1) a loss is on stock received pursuant to the conversion privilege of convertible debentures acquired pursuant to section 304 of the Small Business Investment Act of 1958, and (2) such loss would (but for this section) be a loss from the sale or exchange of a capital asset, then such loss shall be treated as an ordinary loss.

1244. Losses on small business stock

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(a) General rule In the case of an individual, a loss on section 1244 stock issued to such individual or to a partnership which would (but for this section) be treated as a loss from the sale or exchange of a capital asset shall, to the extent provided in this section, be treated as an ordinary loss. (b) Maximum amount for any taxable year For any taxable year the aggregate amount treated by the taxpayer by reason of this section as an ordinary loss shall not exceed (1) $50,000, or (2) $100,000, in the case of a husband and wife filing a joint return for such year under section 6013. (c) Section 1244 stock defined (1) In general For purposes of this section, the term section 1244 stock means stock in a domestic corporation if (A) at the time such stock is issued, such corporation was a small business corporation, (B) such stock was issued by such corporation for money or other property (other than stock and securities), and (C) such corporation, during the period of its 5 most recent taxable years ending before the date the loss on such stock was sustained, derived more than 50 percent of its aggregate gross receipts from sources other than royalties, rents, dividends, interests, annuities, and sales or exchanges of stocks or securities. (2) Rules for application of paragraph (1)(C) (A) Period taken into account with respect to new corporations For purposes of paragraph (1)(C), if the corporation has not been in existence for 5 taxable years ending before the date the loss on the stock was sustained, there shall be substituted for such 5-year period (i) the period of the corporations taxable years ending before such date, or (ii) if the corporation has not been in existence for 1 taxable year ending before such date, the period such corporation has been in existence before such date. (B) Gross receipts from sales of securities For purposes of paragraph (1)(C), gross receipts from the sales or exchanges of stock or securities shall be taken into account only to the extent of gains therefrom. (C) Nonapplication where deductions exceed gross income Paragraph (1)(C) shall not apply with respect to any corporation if, for the period taken into account for purposes of paragraph (1)(C), the amount of the deductions allowed by this chapter (other than by sections 172, 243, 244, and 245) exceeds the amount of gross income. (3) Small business corporation defined (A) In general For purposes of this section, a corporation shall be treated as a small business corporation if the aggregate amount of money and other property received by the corporation for stock, as a contribution to capital, and as paid-in surplus, does not exceed $1,000,000. The determination under the preceding sentence shall be made as of the time of the issuance of the stock in question but shall include amounts received for such stock and for all stock theretofore issued. (B) Amount taken into account with respect to property For purposes of subparagraph (A), the amount taken into account with respect to any property other than money shall be the amount equal to the adjusted basis to the corporation of such property for determining gain, reduced by any liability to which the property was subject or which was assumed by the corporation. The determination under the preceding sentence shall be made as of the time the property was received by the corporation. (d) Special rules (1) Limitations on amount of ordinary loss (A) Contributions of property having basis in excess of value If (i) section 1244 stock was issued in exchange for property,

(ii) the basis of such stock in the hands of the taxpayer is determined by reference to the basis in his hands of such property, and (iii) the adjusted basis (for determining loss) of such property immediately before the exchange exceeded its fair market value at such time, then in computing the amount of the loss on such stock for purposes of this section the basis of such stock shall be reduced by an amount equal to the excess described in clause (iii). (B) Increases in basis In computing the amount of the loss on stock for purposes of this section, any increase in the basis of such stock (through contributions to the capital of the corporation, or otherwise) shall be treated as allocable to stock which is not section 1244 stock. (2) Recapitalizations, changes in name, etc. To the extent provided in regulations prescribed by the Secretary, stock in a corporation, the basis of which (in the hands of a taxpayer) is determined in whole or in part by reference to the basis in his hands of stock in such corporation which meets the requirements of subsection (c)(1) (other than subparagraph (C) thereof), or which is received in a reorganization described in section 368 (a)(1)(F) in exchange for stock which meets such requirements, shall be treated as meeting such requirements. For purposes of paragraphs (1) (C) and (3)(A) of subsection (c), a successor corporation in a reorganization described in section 368(a)(1)(F) shall be treated as the same corporation as its predecessor. (3) Relationship to net operating loss deduction For purposes of section 172 (relating to the net operating loss deduction), any amount of loss treated by reason of this section as an ordinary loss shall be treated as attributable to a trade or business of the taxpayer. (4) Individual defined For purposes of this section, the term individual does not include a trust or estate. (e) Regulations The Secretary shall prescribe such regulations as may be necessary to carry out the purposes of this section.

1245. Gain from dispositions of certain depreciable property


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(a) General rule (1) Ordinary income Except as otherwise provided in this section, if section 1245 property is disposed of the amount by which the lower of (A) the recomputed basis of the property, or (B) (i) in the case of a sale, exchange, or involuntary conversion, the amount realized, or (ii) in the case of any other disposition, the fair market value of such property, exceeds the adjusted basis of such property shall be treated as ordinary income. Such gain shall be recognized notwithstanding any other provision of this subtitle. (2) Recomputed basis For purposes of this section (A) In general The term recomputed basis means, with respect to any property, its adjusted basis recomputed by adding thereto all adjustments reflected in such adjusted basis on account of deductions (whether in respect of the same or other property) allowed or allowable to the taxpayer or to any other person for depreciation or amortization. (B) Taxpayer may establish amount allowed For purposes of subparagraph (A), if the taxpayer can establish by adequate records or other sufficient evidence that the amount allowed for depreciation or amortization for any period

was less than the amount allowable, the amount added for such period shall be the amount allowed. (C) Certain deductions treated as amortization Any deduction allowable under section 179, 179A, 179B, 179C,179D, 179E, 181, 190, 193, or 194 shall be treated as if it were a deduction allowable for amortization. (3) Section 1245 property For purposes of this section, the term section 1245 property means any property which is or has been property of a character subject to the allowance for depreciation provided in section 167 and is either (A) personal property, (B) other property (not including a building or its structural components) but only if such other property is tangible and has an adjusted basis in which there are reflected adjustments described in paragraph (2) for a period in which such property (or other property) (i) was used as an integral part of manufacturing, production, or extraction or of furnishing transportation, communications, electrical energy, gas, water, or sewage disposal services, (ii) constituted a research facility used in connection with any of the activities referred to in clause (i), or (iii) constituted a facility used in connection with any of the activities referred to in clause (i) for the bulk storage of fungible commodities (including commodities in a liquid or gaseous state), (C) so much of any real property (other than any property described in subparagraph (B)) which has an adjusted basis in which there are reflected adjustments for amortization under section 169, 179, 179A,179B, 179C, 179D, 179E, 185,[1] 188 (as in effect before its repeal by the Revenue Reconciliation Act of 1990), 190, 193, or 194,[2] (D) a single purpose agricultural or horticultural structure (as defined in section 168 (i)(13)), (E) a storage facility (not including a building or its structural components) used in connection with the distribution of petroleum or any primary product of petroleum, or (F) any railroad grading or tunnel bore (as defined in section 168 (e)(4)). (b) Exceptions and limitations (1) Gifts Subsection (a) shall not apply to a disposition by gift. (2) Transfers at death Except as provided in section 691 (relating to income in respect of a decedent), subsection (a) shall not apply to a transfer at death. (3) Certain tax-free transactions If the basis of property in the hands of a transferee is determined by reference to its basis in the hands of the transferor by reason of the application of section 332, 351, 361, 721, or 731, then the amount of gain taken into account by the transferor under subsection (a)(1) shall not exceed the amount of gain recognized to the transferor on the transfer of such property (determined without regard to this section). Except as provided in paragraph (6), this paragraph shall not apply to a disposition to an organization (other than a cooperative described in section 521) which is exempt from the tax imposed by this chapter. (4) Like kind exchanges; involuntary conversions, etc. If property is disposed of and gain (determined without regard to this section) is not recognized in whole or in part under section 1031 or 1033, then the amount of gain taken into account by the transferor under subsection (a)(1) shall not exceed the sum of (A) the amount of gain recognized on such disposition (determined without regard to this section), plus (B) the fair market value of property acquired which is not section1245 property and which is not taken into account under subparagraph (A). (5) Property distributed by a partnership to a partner (A) In general For purposes of this section, the basis of section 1245 property distributed by a partnership to a partner shall be deemed to be determined by reference to the adjusted basis of such property to the partnership. (B) Adjustments added back

In the case of any property described in subparagraph (A), for purposes of computing the recomputed basis of such property the amount of the adjustments added back for periods before the distribution by the partnership shall be (i) the amount of the gain to which subsection (a) would have applied if such property had been sold by the partnership immediately before the distribution at its fair market value at such time, reduced by (ii) the amount of such gain to which section 751 (b) applied. (6) Transfers to tax-exempt organization where property will be used in unrelated business (A) In general The second sentence of paragraph (3) shall not apply to a disposition of section 1245 property to an organization described in section 511 (a)(2) or 511 (b)(2) if, immediately after such disposition, such organization uses such property in an unrelated trade or business (as defined in section 513). (B) Later change in use If any property with respect to the disposition of which gain is not recognized by reason of subparagraph (A) ceases to be used in an unrelated trade or business of the organization acquiring such property, such organization shall be treated for purposes of this section as having disposed of such property on the date of such cessation. (7) Timber property In determining, under subsection (a)(2), the recomputed basis of property with respect to which a deduction under section 194 was allowed for any taxable year, the taxpayer shall not take into account adjustments under section 194 to the extent such adjustments are attributable to the amortizable basis of the taxpayer acquired before the 10th taxable year preceding the taxable year in which gain with respect to the property is recognized. (8) Disposition of amortizable section 197 intangibles (A) In general If a taxpayer disposes of more than 1 amortizable section 197intangible (as defined in section 197 (c)) in a transaction or a series of related transactions, all such amortizable 197 intangibles shall be treated as 1 section 1245 property for purposes of this section. (B) Exception Subparagraph (A) shall not apply to any amortizable section 197intangible (as so defined) with respect to which the adjusted basis exceeds the fair market value. (c) Adjustments to basis The Secretary shall prescribe such regulations as he may deem necessary to provide for adjustments to the basis of property to reflect gain recognized under subsection (a). (d) Application of section This section shall apply notwithstanding any other provision of this subtitle.

[1] See References in Text note below. [2] Comma added editorially.

1246, 1247. Repealed. Pub. L. 108357, title IV, 413(a)(2), (3), Oct. 22, 2004, 118 Stat. 1506]
How Current is This?

Section 1246, added Pub. L. 87834, 14(a)(1), Oct. 16, 1962, 76 Stat. 1036; amended Pub. L. 94455, title XIV, 1402(b)(1)(W), (2), title XIX, 1901(a)(141), (b)(3) (I), (32)(B)(ii), 1906 (b)(13)(A), title XX, 2005(a)(5), Oct. 4, 1976, 90 Stat. 1732, 1787, 1793, 1800, 1834, 1877; Pub. L. 96223, title IV, 401(a), Apr. 2, 1980, 94 Stat. 299; Pub.

L. 9734, title VIII, 832(a), Aug. 13, 1981, 95 Stat. 355; Pub. L. 98369, div. A, title I, 134(a), title X, 1001(b)(20), (e), July 18, 1984, 98 Stat. 668, 1012; Pub. L. 99514, title XII, 1235(b), Oct. 22, 1986, 100 Stat. 2574; Pub. L. 100647, title I, 1012(p) (21), 1018 (o)(2), Nov. 10, 1988,102 Stat. 3519, 3585; Pub. L. 10716, title V, 542(e)(5) (A), June 7, 2001, 115 Stat. 85, related to treatment of gain on foreign investment company stock. Section 1247, added Pub. L. 87834, 14(a)(1), Oct. 16, 1962, 76 Stat. 1037; amended Pub. L. 94455, title XIV, 1402(b)(1)(X), (2), title XIX, 1901(b)(33)(P), (R), 1906 (b)(13)(A), Oct. 4, 1976, 90 Stat. 1732, 1802, 1834; Pub. L. 98369, div. A, title X, 1001(b)(21), (e), July 18, 1984, 98 Stat. 1012, related to election by foreign investment companies to distribute income currently.

1248. Gain from certain sales or exchanges of stock in certain foreign corporations
How Current is This?

(a) General rule If (1) a United States person sells or exchanges stock in a foreign corporation, and (2) such person owns, within the meaning of section 958 (a), or is considered as owning by applying the rules of ownership of section 958(b), 10 percent or more of the total combined voting power of all classes of stock entitled to vote of such foreign corporation at any time during the 5-year period ending on the date of the sale or exchange when such foreign corporation was a controlled foreign corporation (as defined in section957), then the gain recognized on the sale or exchange of such stock shall be included in the gross income of such person as a dividend, to the extent of the earnings and profits of the foreign corporation attributable (under regulations prescribed by the Secretary) to such stock which were accumulated in taxable years of such foreign corporation beginning after December 31, 1962, and during the period or periods the stock sold or exchanged was held by such person while such foreign corporation was a controlled foreign corporation. For purposes of this section, a United States person shall be treated as having sold or exchanged any stock if, under any provision of this subtitle, such person is treated as realizing gain from the sale or exchange of such stock. (b) Limitation on tax applicable to individuals In the case of an individual, if the stock sold or exchanged is a capital asset (within the meaning of section 1221) and has been held for more than 1 year, the tax attributable to an amount included in gross income as a dividend under subsection (a) shall not be greater than a tax equal to the sum of (1) a pro rata share of the excess of (A) the taxes that would have been paid by the foreign corporation with respect to its income had it been taxed under this chapter as a domestic corporation (but without allowance for deduction of, or credit for, taxes described in subparagraph (B)), for the period or periods the stock sold or exchanged was held by the United States person in taxable years beginning after December 31, 1962, while the foreign corporation was a controlled foreign corporation, adjusted for distributions and amounts previously included in gross income of a United States shareholder under section 951, over (B) the income, war profits, or excess profits taxes paid by the foreign corporation with respect to such income; and (2) an amount equal to the tax that would result by including in gross income, as gain from the sale or exchange of a capital asset held for more than 1 year, an amount equal to the excess of (A) the amount included in gross income as a dividend under subsection (a), over (B) the amount determined under paragraph (1). (c) Determination of earnings and profits

(1) In general Except as provided in section 312 (k)(4), for purposes of this section, the earnings and profits of any foreign corporation for any taxable year shall be determined according to rules substantially similar to those applicable to domestic corporations, under regulations prescribed by the Secretary. (2) Earnings and profits of subsidiaries of foreign corporations If (A) subsection (a) or (f) applies to a sale, exchange, or distribution by a United States person of stock of a foreign corporation and, by reason of the ownership of the stock sold or exchanged, such person owned within the meaning of section 958 (a)(2) stock of any other foreign corporation; and (B) such person owned, within the meaning of section 958 (a), or was considered as owning by applying the rules of ownership of section 958 (b), 10 percent or more of the total combined voting power of all classes of stock entitled to vote of such other foreign corporation at any time during the 5-year period ending on the date of the sale or exchange when such other foreign corporation was a controlled foreign corporation (as defined in section 957), then, for purposes of this section, the earnings and profits of the foreign corporation the stock of which is sold or exchanged which are attributable to the stock sold or exchanged shall be deemed to include the earnings and profits of such other foreign corporation which (C) are attributable (under regulations prescribed by the Secretary) to the stock of such other foreign corporation which such person owned within the meaning of section 958 (a) (2) (by reason of his ownership within the meaning of section 958(a)(1)(A) of the stock sold or exchanged) on the date of such sale or exchange (or on the date of any sale or exchange of the stock of such other foreign corporation occurring during the 5-year period ending on the date of the sale or exchange of the stock of such foreign corporation, to the extent not otherwise taken into account under this section but not in excess of the fair market value of the stock of such other foreign corporation sold or exchanged over the basis of such stock (for determining gain) in the hands of the transferor); and (D) were accumulated in taxable years of such other corporation beginning after December 31, 1962, and during the period or periods (i) such other corporation was a controlled foreign corporation, and (ii) such person owned within the meaning of section 958 (a) the stock of such other foreign corporation. (d) Exclusions from earnings and profits For purposes of this section, the following amounts shall be excluded, with respect to any United States person, from the earnings and profits of a foreign corporation: (1) Amounts included in gross income under section 951 Earnings and profits of the foreign corporation attributable to any amount previously included in the gross income of such person under section 951, with respect to the stock sold or exchanged, but only to the extent the inclusion of such amount did not result in an exclusion of an amount from gross income under section 959. [(2) Repealed. Pub. L. 100647, title I, 1006(e)(14)(A), Nov. 10, 1988, 102 Stat. 3402] (3) Less developed country corporations under prior law Earnings and profits of a foreign corporation which were accumulated during any taxable year beginning before January 1, 1976, while such corporation was a less developed country corporation under section 902(d) as in effect before the enactment of the Tax Reduction Act of 1975. (4) United States income Any item includible in gross income of the foreign corporation under this chapter (A) for any taxable year beginning before January 1, 1967, as income derived from sources within the United States of a foreign corporation engaged in trade or business within the United States, or (B) for any taxable year beginning after December 31, 1966, as income effectively connected with the conduct by such corporation of a trade or business within the United States. This paragraph shall not apply with respect to any item which is exempt from taxation (or is subject to a reduced rate of tax) pursuant to a treaty obligation of the United States.

(5) Foreign trade income Earnings and profits of the foreign corporation attributable to foreign trade income of a FSC (as defined in section 922) other than foreign trade income which (A) is section 923 (a)(2) non-exempt income (within the meaning of section 927 (d)(6)), or (B) would not (but for section 923 (a)(4)) be treated as exempt foreign trade income. For purposes of the preceding sentence, the terms foreign trade income and exempt foreign trade income have the respective meanings given such terms by section 923. Any reference in this paragraph to section 922,923, or 927 shall be treated as a reference to such section as in effect before its repeal by the FSC Repeal and Extraterritorial Income Exclusion Act of 2000. (6) Amounts included in gross income under section 1293 Earnings and profits of the foreign corporation attributable to any amount previously included in the gross income of such person under section 1293 with respect to the stock sold or exchanged, but only to the extent the inclusion of such amount did not result in an exclusion of an amount under section 1293 (c). (e) Sales or exchanges of stock in certain domestic corporations Except as provided in regulations prescribed by the Secretary, if (1) a United States person sells or exchanges stock of a domestic corporation, and (2) such domestic corporation was formed or availed of principally for the holding, directly or indirectly, of stock of one or more foreign corporations, such sale or exchange shall, for purposes of this section, be treated as a sale or exchange of the stock of the foreign corporation or corporations held by the domestic corporation. (f) Certain nonrecognition transactions Except as provided in regulations prescribed by the Secretary (1) In general If (A) a domestic corporation satisfies the stock ownership requirements of subsection (a)(2) with respect to a foreign corporation, and (B) such domestic corporation distributes stock of such foreign corporation in a distribution to which section 311 (a), 337, 355 (c)(1), or 361 (c)(1) applies, then, notwithstanding any other provision of this subtitle, an amount equal to the excess of the fair market value of such stock over its adjusted basis in the hands of the domestic corporation shall be included in the gross income of the domestic corporation as a dividend to the extent of the earnings and profits of the foreign corporation attributable (under regulations prescribed by the Secretary) to such stock which were accumulated in taxable years of such foreign corporation beginning after December 31, 1962, and during the period or periods the stock was held by such domestic corporation while such foreign corporation was a controlled foreign corporation. For purposes of subsections (c)(2), (d), and (h), a distribution of stock to which this subsection applies shall be treated as a sale of stock to which subsection (a) applies. (2) Exception for certain distributions In the case of any distribution of stock of a foreign corporation, paragraph (1) shall not apply if such distribution is to a domestic corporation (A) which is treated under this section as holding such stock for the period for which the stock was held by the distributing corporation, and (B) which, immediately after the distribution, satisfies the stock ownership requirements of subsection (a)(2) with respect to such foreign corporation. (3) Application to cases described in subsection (e) To the extent that earnings and profits are taken into account under this subsection, they shall be excluded and not taken into account for purposes of subsection (e). (g) Exceptions This section shall not apply to (1) distributions to which section 303 (relating to distributions in redemption of stock to pay death taxes) applies; or (2) any amount to the extent that such amount is, under any other provision of this title, treated as (A) a dividend (other than an amount treated as a dividend under subsection (f)), (B) ordinary income, or

(C) gain from the sale of an asset held for not more than 1 year. (h) Taxpayer to establish earnings and profits Unless the taxpayer establishes the amount of the earnings and profits of the foreign corporation to be taken into account under subsection (a) or (f), all gain from the sale or exchange shall be considered a dividend under subsection (a) or (f), and unless the taxpayer establishes the amount of foreign taxes to be taken into account under subsection (b), the limitation of such subsection shall not apply. (i) Treatment of certain indirect transfers (1) In general If any shareholder of a 10-percent corporate shareholder of a foreign corporation exchanges stock of the 10-percent corporate shareholder for stock of the foreign corporation, such 10percent corporate shareholder shall recognize gain in the same manner as if the stock of the foreign corporation received in such exchange had been (A) issued to the 10-percent corporate shareholder, and (B) then distributed by the 10-percent corporate shareholder to such shareholder in redemption or liquidation (whichever is appropriate). The amount of gain recognized by such 10-percent corporate shareholder under the preceding sentence shall not exceed the amount treated as a dividend under this section. (2) 10-percent corporate shareholder defined For purposes of this subsection, the term 10-percent corporate shareholder means any domestic corporation which, as of the day before the exchange referred to in paragraph (1), satisfies the stock ownership requirements of subsection (a)(2) with respect to the foreign corporation. (j) Cross reference For provision excluding amounts previously taxed under this section from gross income when subsequently distributed, see section 959 (e).

1249. Gain from certain sales or exchanges of patents, etc., to foreign corporations
How Current is This?

(a) General rule Gain from the sale or exchange after December 31, 1962, of a patent, an invention, model, or design (whether or not patented), a copyright, a secret formula or process, or any other similar property right to any foreign corporation by any United States person (as defined in section 7701 (a)(30)) which controls such foreign corporation shall, if such gain would (but for the provisions of this subsection) be gain from the sale or exchange of a capital asset or of property described in section 1231, be considered as ordinary income. (b) Control For purposes of subsection (a), control means, with respect to any foreign corporation, the ownership, directly or indirectly, of stock possessing more than 50 percent of the total combined voting power of all classes of stock entitled to vote. For purposes of this subsection, the rules for determining ownership of stock prescribed by section 958 shall apply.

1250. Gain from dispositions of certain depreciable realty


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(a) General rule

Except as otherwise provided in this section (1) Additional depreciation after December 31, 1975 (A) In general If section 1250 property is disposed of after December 31, 1975, then the applicable percentage of the lower of (i) that portion of the additional depreciation (as defined in subsection (b)(1) or (4)) attributable to periods after December 31, 1975, in respect of the property, or (ii) the excess of the amount realized (in the case of a sale, exchange, or involuntary conversion), or the fair market value of such property (in the case of any other disposition), over the adjusted basis of such property, shall be treated as gain which is ordinary income. Such gain shall be recognized notwithstanding any other provision of this subtitle. (B) Applicable percentage For purposes of subparagraph (A), the term applicable percentage means (i) in the case of section 1250 property with respect to which a mortgage is insured under section 221(d)(3) or 236 of the National Housing Act, or housing financed or assisted by direct loan or tax abatement under similar provisions of State or local laws and with respect to which the owner is subject to the restrictions described in section 1039 (b)(1)(B) (as in effect on the day before the date of the enactment of the Revenue Reconciliation Act of 1990), 100 percent minus 1 percentage point for each full month the property was held after the date the property was held 100 full months; (ii) in the case of dwelling units which, on the average, were held for occupancy by families or individuals eligible to receive subsidies under section 8 of the United States Housing Act of 1937, as amended, or under the provisions of State or local law authorizing similar levels of subsidy for lower-income families, 100 percent minus 1 percentage point for each full month the property was held after the date the property was held 100 full months; (iii) in the case of section 1250 property with respect to which a depreciation deduction for rehabilitation expenditures was allowed under section 167 (k), 100 percent minus 1 percentage point for each full month in excess of 100 full months after the date on which such property was placed in service; (iv) in the case of section 1250 property with respect to which a loan is made or insured under title V of the Housing Act of 1949, 100 percent minus 1 percentage point for each full month the property was held after the date the property was held 100 full months; and (v) in the case of all other section 1250 property, 100 percent. In the case of a building (or a portion of a building devoted to dwelling units), if, on the average, 85 percent or more of the dwelling units contained in such building (or portion thereof) are units described in clause (ii), such building (or portion thereof) shall be treated as property described in clause (ii). Clauses (i), (ii), and (iv) shall not apply with respect to the additional depreciation described in subsection (b)(4) which was allowed under section 167 (k). (2) Additional depreciation after December 31, 1969, and before January 1, 1976 (A) In general If section 1250 property is disposed of after December 31, 1969, and the amount determined under paragraph (1)(A)(ii) exceeds the amount determined under paragraph (1)(A)(i), then the applicable percentage of the lower of (i) that portion of the additional depreciation attributable to periods after December 31, 1969, and before January 1, 1976, in respect of the property, or (ii) the excess of the amount determined under paragraph (1)(A)(ii) over the amount determined under paragraph (1)(A)(i), shall also be treated as gain which is ordinary income. Such gain shall be recognized notwithstanding any other provision of this subtitle. (B) Applicable percentage For purposes of subparagraph (A), the term applicable percentage means (i) in the case of section 1250 property disposed of pursuant to a written contract which was, on July 24, 1969, and at all times thereafter, binding on the owner of the property, 100 percent minus 1 percentage point for each full month the property was held after the date the property was held 20 full months;

(ii) in the case of section 1250 property with respect to which a mortgage is insured under section 221(d)(3) or 236 of the National Housing Act, or housing financed or assisted by direct loan or tax abatement under similar provisions of State or local laws, and with respect to which the owner is subject to the restrictions described in section 1039 (b)(1)(B) (as in effect on the day before the date of the enactment of the Revenue Reconciliation Act of 1990), 100 percent minus 1 percentage point for each full month the property was held after the date the property was held 20 full months; (iii) in the case of residential rental property (as defined in section 167 (j)(2)(B)) other than that covered by clauses (i) and (ii), 100 percent minus 1 percentage point for each full month the property was held after the date the property was held 100 full months; (iv) in the case of section 1250 property with respect to which a depreciation deduction for rehabilitation expenditures was allowed under section 167 (k), 100 percent minus 1 percentage point for each full month in excess of 100 full months after the date on which such property was placed in service; and (v) in the case of all other section 1250 property, 100 percent. Clauses (i), (ii), and (iii) shall not apply with respect to the additional depreciation described in subsection (b)(4). (3) Additional depreciation before January 1, 1970 (A) In general If section 1250 property is disposed of after December 31, 1963, and the amount determined under paragraph (1)(A)(ii) exceeds the sum of the amounts determined under paragraphs (1) (A)(i) and (2)(A)(i), then the applicable percentage of the lower of (i) that portion of the additional depreciation attributable to periods before January 1, 1970, in respect of the property, or (ii) the excess of the amount determined under paragraph (1)(A)(ii) over the sum of the amounts determined under paragraphs (1)(A)(i) and (2)(A)(i), shall also be treated as gain which is ordinary income. Such gain shall be recognized notwithstanding any other provision of this subtitle. (B) Applicable percentage For purposes of subparagraph (A), the term applicable percentage means 100 percent minus 1 percentage point for each full month the property was held after the date on which the property was held for 20 full months. (4) Special rule For purposes of this subsection, any reference to section 167 (k) or 167(j)(2)(B) shall be treated as a reference to such section as in effect on the day before the date of the enactment of the Revenue Reconciliation Act of 1990. (5) Cross reference For reduction in the case of corporations on capital gain treatment under this section, see section 291 (a)(1). (b) Additional depreciation defined For purposes of this section (1) In general The term additional depreciation means, in the case of any property, the depreciation adjustments in respect of such property; except that, in the case of property held more than one year, it means such adjustments only to the extent that they exceed the amount of the depreciation adjustments which would have resulted if such adjustments had been determined for each taxable year under the straight line method of adjustment. (2) Property held by lessee In the case of a lessee, in determining the depreciation adjustments which would have resulted in respect of any building erected (or other improvement made) on the leased property, or in respect of any cost of acquiring the lease, the lease period shall be treated as including all renewal periods. For purposes of the preceding sentence (A) the term renewal period means any period for which the lease may be renewed, extended, or continued pursuant to an option exercisable by the lessee, but (B) the inclusion of renewal periods shall not extend the period taken into account by more than 2/3 of the period on the basis of which the depreciation adjustments were allowed. (3) Depreciation adjustments

The term depreciation adjustments means, in respect of any property, all adjustments attributable to periods after December 31, 1963, reflected in the adjusted basis of such property on account of deductions (whether in respect of the same or other property) allowed or allowable to the taxpayer or to any other person for exhaustion, wear and tear, obsolescence, or amortization (other than amortization under section168 (as in effect before its repeal by the Tax Reform Act of 1976), 169, 185 (as in effect before its repeal by the Tax Reform Act of 1986), 188 (as in effect before its repeal by the Revenue Reconciliation Act of 1990), 190, or 193). For purposes of the preceding sentence, if the taxpayer can establish by adequate records or other sufficient evidence that the amount allowed as a deduction for any period was less than the amount allowable, the amount taken into account for such period shall be the amount allowed. (4) Additional depreciation attributable to rehabilitation expenditures The term additional depreciation also means, in the case of section1250 property with respect to which a depreciation or amortization deduction for rehabilitation expenditures was allowed under section 167(k) (as in effect on the day before the date of the enactment of the Revenue Reconciliation Act of 1990) or 191 (as in effect before its repeal by the Economic Recovery Tax Act of 1981), the depreciation or amortization adjustments allowed under such section to the extent attributable to such property, except that, in the case of such property held for more than one year after the rehabilitation expenditures so allowed were incurred, it means such adjustments only to the extent that they exceed the amount of the depreciation adjustments which would have resulted if such adjustments had been determined under the straight line method of adjustment without regard to the useful life permitted under section 167 (k) (as in effect on the day before the date of the enactment of the Revenue Reconciliation Act of 1990) or 191 (as in effect before its repeal by the Economic Recovery Tax Act of 1981). (5) Method of computing straight line adjustments For purposes of paragraph (1), the depreciation adjustments which would have resulted for any taxable year under the straight line method shall be determined (A) in the case of property to which section 168 applies, by determining the adjustments which would have resulted for such year if the taxpayer had elected the straight line method for such year using the recovery period applicable to such property, and (B) in the case any property to which section 168 does not apply, if a useful life (or salvage value) was used in determining the amount allowable as a deduction for any taxable year, by using such life (or value). (c) Section 1250 property For purposes of this section, the term section 1250 property means any real property (other than section 1245 property, as defined in section 1245 (a)(3)) which is or has been property of a character subject to the allowance for depreciation provided in section 167. (d) Exceptions and limitations (1) Gifts Subsection (a) shall not apply to a disposition by gift. (2) Transfers at death Except as provided in section 691 (relating to income in respect of a decedent), subsection (a) shall not apply to a transfer at death. (3) Certain tax-free transactions If the basis of property in the hands of a transferee is determined by reference to its basis in the hands of the transferor by reason of the application of section 332, 351, 361, 721, or 731, then the amount of gain taken into account by the transferor under subsection (a) shall not exceed the amount of gain recognized to the transferor on the transfer of such property (determined without regard to this section). Except as provided in paragraph (9), this paragraph shall not apply to a disposition to an organization (other than a cooperative described in section 521) which is exempt from the tax imposed by this chapter. (4) Like kind exchanges; involuntary conversions, etc. (A) Recognition limit If property is disposed of and gain (determined without regard to this section) is not recognized in whole or in part under section 1031or 1033, then the amount of gain taken into account by the transferor under subsection (a) shall not exceed the greater of the following:

(i) the amount of gain recognized on the disposition (determined without regard to this section), increased as provided in subparagraph (B), or (ii) the amount determined under subparagraph (C). (B) Increase for certain stock With respect to any transaction, the increase provided by this subparagraph is the amount equal to the fair market value of any stock purchased in a corporation which (but for this paragraph) would result in nonrecognition of gain under section 1033 (a)(2)(A). (C) Adjustment where insufficient section 1250 property is acquired With respect to any transaction, the amount determined under this subparagraph shall be the excess of (i) the amount of gain which would (but for this paragraph) be taken into account under subsection (a), over (ii) the fair market value (or cost in the case of a transaction described in section 1033(a) (2)) of the section 1250 property acquired in the transaction. (D) Basis of property acquired In the case of property purchased by the taxpayer in a transaction described in section 1033 (a)(2), in applying section 1033 (b)(2), such sentence shall be applied (i) first solely to section 1250 properties and to the amount of gain not taken into account under subsection (a) by reason of this paragraph, and (ii) then to all purchased properties to which such sentence applies and to the remaining gain not recognized on the transaction as if the cost of the section 1250 properties were the basis of such properties computed under clause (i). In the case of property acquired in any other transaction to which this paragraph applies, rules consistent with the preceding sentence shall be applied under regulations prescribed by the Secretary. (E) Additional depreciation with respect to property disposed of In the case of any transaction described in section 1031 or 1033, the additional depreciation in respect of the section 1250 property acquired which is attributable to the section 1250 property disposed of shall be an amount equal to the amount of the gain which was not taken into account under subsection (a) by reason of the application of this paragraph. (5) Property distributed by a partnership to a partner (A) In general For purposes of this section, the basis of section 1250 property distributed by a partnership to a partner shall be deemed to be determined by reference to the adjusted basis of such property to the partnership. (B) Additional depreciation In respect of any property described in subparagraph (A), the additional depreciation attributable to periods before the distribution by the partnership shall be (i) the amount of the gain to which subsection (a) would have applied if such property had been sold by the partnership immediately before the distribution at its fair market value at such time and the applicable percentage for the property had been 100 percent, reduced by (ii) if section 751 (b) applied to any part of such gain, the amount of such gain to which section 751 (b) would have applied if the applicable percentage for the property had been 100 percent. (6) Transfers to tax-exempt organization where property will be used in unrelated business (A) In general The second sentence of paragraph (3) shall not apply to a disposition of section 1250 property to an organization described in section 511 (a)(2) or 511 (b)(2) if, immediately after such disposition, such organization uses such property in an unrelated trade or business (as defined in section 513). (B) Later change in use If any property with respect to the disposition of which gain is not recognized by reason of subparagraph (A) ceases to be used in an unrelated trade or business of the organization acquiring such property, such organization shall be treated for purposes of this section as having disposed of such property on the date of such cessation. (7) Foreclosure dispositions

If any section 1250 property is disposed of by the taxpayer pursuant to a bid for such property at foreclosure or by operation of an agreement or of process of law after there was a default on indebtedness which such property secured, the applicable percentage referred to in paragraph (1)(B), (2)(B), or (3)(B) of subsection (a), as the case may be, shall be determined as if the taxpayer ceased to hold such property on the date of the beginning of the proceedings pursuant to which the disposition occurred, or, in the event there are no proceedings, such percentage shall be determined as if the taxpayer ceased to hold such property on the date, determined under regulations prescribed by the Secretary, on which such operation of an agreement or process of law, pursuant to which the disposition occurred, began. (e) Holding period For purposes of determining the applicable percentage under this section, the provisions of section 1223 shall not apply, and the holding period of section1250 property shall be determined under the following rules: (1) Beginning of holding period The holding period of section 1250 property shall be deemed to begin (A) in the case of property acquired by the taxpayer, on the day after the date of acquisition, or (B) in the case of property constructed, reconstructed, or erected by the taxpayer, on the first day of the month during which the property is placed in service. (2) Property with transferred basis If the basis of property acquired in a transaction described in paragraph (1), (2), or (3) of subsection (d) is determined by reference to its basis in the hands of the transferor, then the holding period of the property in the hands of the transferee shall include the holding period of the property in the hands of the transferor. (f) Special rules for property which is substantially improved (1) Amount treated as ordinary income If, in the case of a disposition of section 1250 property, the property is treated as consisting of more than one element by reason of paragraph (3), then the amount taken into account under subsection (a) in respect of such section 1250 property as ordinary income shall be the sum of the amounts determined under paragraph (2). (2) Ordinary income attributable to an element For purposes of paragraph (1), the amount taken into account for any element shall be the sum of a series of amounts determined for the periods set forth in subsection (a), with the amount for any such period being determined by multiplying (A) the amount which bears the same ratio to the lower of the amounts specified in clause (i) or (ii) of subsection (a)(1)(A), in clause (i) or (ii) of subsection (a)(2)(A), or in clause (i) or (ii) of subsection (a)(3)(A), as the case may be, for the section 1250 property as the additional depreciation for such element attributable to such period bears to the sum of the additional depreciation for all elements attributable to such period, by (B) the applicable percentage for such element for such period. For purposes of this paragraph, determinations with respect to any element shall be made as if it were a separate property. (3) Property consisting of more than one element In applying this subsection in the case of any section 1250 property, there shall be treated as a separate element (A) each separate improvement, (B) if, before completion of section 1250 property, units thereof (as distinguished from improvements) were placed in service, each such unit of section 1250 property, and (C) the remaining property which is not taken into account under subparagraphs (A) and (B). (4) Property which is substantially improved For purposes of this subsection (A) In general The term separate improvement means each improvement added during the 36month period ending on the last day of any taxable year to the capital account for the property, but only if the sum of the amounts added to such account during such period exceeds the greatest of (i) 25 percent of the adjusted basis of the property,

(ii) 10 percent of the adjusted basis of the property, determined without regard to the adjustments provided in paragraphs (2) and (3) of section 1016 (a), or (iii) $5,000. For purposes of clauses (i) and (ii), the adjusted basis of the property shall be determined as of the beginning of the first day of such 36month period, or of the holding period of the property (within the meaning of subsection (e)), whichever is the later. (B) Exception Improvements in any taxable year shall be taken into account for purposes of subparagraph (A) only if the sum of the amounts added to the capital account for the property for such taxable year exceeds the greater of (i) $2,000, or (ii) one percent of the adjusted basis referred to in subparagraph (A)(ii), determined, however, as of the beginning of such taxable year. For purposes of this section, if the amount added to the capital account for any separate improvement does not exceed the greater of clause (i) or (ii), such improvement shall be treated as placed in service on the first day, of a calendar month, which is closest to the middle of the taxable year. (C) Improvement The term improvement means, in the case of any section 1250property, any addition to capital account for such property after the initial acquisition or after completion of the property. (g) Adjustments to basis The Secretary shall prescribe such regulations as he may deem necessary to provide for adjustments to the basis of property to reflect gain recognized under subsection (a). (h) Application of section This section shall apply notwithstanding any other provision of this subtitle.

1251. Repealed. Pub. L. 98369, div. A, title IV, 492(a), July 18, 1984, 98 Stat. 853]
How Current is This?

Section, added Pub. L. 91172, title II, 211(a), Dec. 30, 1969, 83 Stat. 566; amended Pub. L. 92178, title III, 305(a), Dec. 10, 1971, 85 Stat. 524; Pub. L. 94455, title II, 206(a), (b)(1), (2), title XIV, 1402(b)(1)(Z), (2), title XIX, 1901(b)(3)(K), 1906 (b)(13)(A), Oct. 4, 1976, 90 Stat. 1535, 1732, 1793, 1834;Pub. L. 97354, 5(a)(36), Oct. 19, 1982, 96 Stat. 1695; Pub. L. 98369, div. A, title X, 1001(b)(23), (e), July 18, 1984, 98 Stat. 1012, related to gain from disposition of property used in farming where farm losses offset nonfarm income.

1252. Gain from disposition of farm land


How Current is This?

(a) General rule (1) Ordinary income Except as otherwise provided in this section, if farm land which the taxpayer has held for less than 10 years is disposed of during a taxable year beginning after December 31, 1969, the lower of (A) the applicable percentage of the aggregate of the deductions allowed under sections 175 (relating to soil and water conservation expenditures) and 182 (relating to expenditures by farmers for clearing land) for expenditures made by the taxpayer after December 31, 1969, with respect to the farm land or

(B) the excess of (i) the amount realized (in the case of a sale, exchange, or involuntary conversion), or the fair market value of the farm land (in the case of any other disposition), over (ii) the adjusted basis of such land, shall be treated as ordinary income. Such gain shall be recognized notwithstanding any other provision of this subtitle. (2) Farm land For purposes of this section, the term farm land means any land with respect to which deductions have been allowed under sections 175(relating to soil and water conservation expenditures) or 182 (as in effect on the day before the date of the enactment of the Tax Reform Act of 1986). (3) Applicable percentage For purposes of this section

If the farm land is disposed of

The applicablepercentage is

Within 5 years after the date it was acquired 100 percent. Within the sixth year after it was acquired 80 percent. Within the seventh year after it was acquired 60 percent. Within the eighth year after it was acquired 40 percent. Within the ninth year after it was acquired 20 percent. 10 years or more years after it was acquired 0 percent.
(b) Special rules Under regulations prescribed by the Secretary, rules similar to the rules of section 1245 shall be applied for purposes of this section.

1253. Transfers of franchises, trademarks, and trade names


How Current is This?

(a) General rule A transfer of a franchise, trademark, or trade name shall not be treated as a sale or exchange of a capital asset if the transferor retains any significant power, right, or continuing interest with respect to the subject matter of the franchise, trademark, or trade name. (b) Definitions For purposes of this section (1) Franchise The term franchise includes an agreement which gives one of the parties to the agreement the right to distribute, sell, or provide goods, services, or facilities, within a specified area. (2) Significant power, right, or continuing interest The term significant power, right, or continuing interest includes, but is not limited to, the following rights with respect to the interest transferred: (A) A right to disapprove any assignment of such interest, or any part thereof. (B) A right to terminate at will. (C) A right to prescribe the standards of quality of products used or sold, or of services furnished, and of the equipment and facilities used to promote such products or services. (D) A right to require that the transferee sell or advertise only products or services of the transferor.

(E) A right to require that the transferee purchase substantially all of his supplies and equipment from the transferor. (F) A right to payments contingent on the productivity, use, or disposition of the subject matter of the interest transferred, if such payments constitute a substantial element under the transfer agreement. (3) Transfer The term transfer includes the renewal of a franchise, trademark, or trade name. (c) Treatment of contingent payments by transferor Amounts received or accrued on account of a transfer, sale, or other disposition of a franchise, trademark, or trade name which are contingent on the productivity, use, or disposition of the franchise, trademark, or trade name transferred shall be treated as amounts received or accrued from the sale or other disposition of property which is not a capital asset. (d) Treatment of payments by transferee (1) Contingent serial payments (A) In general Any amount described in subparagraph (B) which is paid or incurred during the taxable year on account of a transfer, sale, or other disposition of a franchise, trademark, or trade name shall be allowed as a deduction under section 162 (a) (relating to trade or business expenses). (B) Amounts to which paragraph applies An amount is described in this subparagraph if it (i) is contingent on the productivity, use, or disposition of the franchise, trademark, or trade name, and (ii) is paid as part of a series of payments (I) which are payable not less frequently than annually throughout the entire term of the transfer agreement, and (II) which are substantially equal in amount (or payable under a fixed formula). (2) Other payments Any amount paid or incurred on account of a transfer, sale, or other disposition of a franchise, trademark, or trade name to which paragraph (1) does not apply shall be treated as an amount chargeable to capital account. (3) Renewals, etc. For purposes of determining the term of a transfer agreement under this section, there shall be taken into account all renewal options (and any other period for which the parties reasonably expect the agreement to be renewed).

1254. Gain from disposition of interest in oil, gas, geothermal, or other mineral properties
How Current is This?

(a) General rule (1) Ordinary income If any section 1254 property is disposed of, the lesser of (A) the aggregate amount of (i) expenditures which have been deducted by the taxpayer or any person under section 263, 616, or 617 with respect to such property and which, but for such deduction, would have been included in the adjusted basis of such property, and (ii) the deductions for depletion under section 611 which reduced the adjusted basis of such property, or (B) the excess of (i) in the case of (I) a sale, exchange, or involuntary conversion, the amount realized, or (II) in the case of any other disposition, the fair market value of such property, over

(ii) the adjusted basis of such property, shall be treated as gain which is ordinary income. Such gain shall be recognized notwithstanding any other provision of this subtitle. (2) Disposition of portion of property For purposes of paragraph (1) (A) In the case of the disposition of a portion of section 1254property (other than an undivided interest), the entire amount of the aggregate expenditures or deductions described in paragraph (1)(A) with respect to such property shall be treated as allocable to such portion to the extent of the amount of the gain to which paragraph (1) applies. (B) In the case of the disposition of an undivided interest in a section1254 property (or a portion thereof), a proportionate part of the expenditures or deductions described in paragraph (1)(A) with respect to such property shall be treated as allocable to such undivided interest to the extent of the amount of the gain to which paragraph (1) applies. This paragraph shall not apply to any expenditures to the extent the taxpayer establishes to the satisfaction of the Secretary that such expenditures do not relate to the portion (or interest therein) disposed of. (3) Section 1254 property The term section 1254 property means any property (within the meaning of section 614) if (A) any expenditures described in paragraph (1)(A) are properly chargeable to such property, or (B) the adjusted basis of such property includes adjustments for deductions for depletion under section 611. (4) Adjustment for amounts included in gross income under section 617 (b)(1)(A) The amount of the expenditures referred to in paragraph (1)(A)(i) shall be properly adjusted for amounts included in gross income under section617 (b)(1)(A). (b) Special rules under regulations Under regulations prescribed by the Secretary (1) rules similar to the rule of subsection (g) of section 617 and to the rules of subsections (b) and (c) of section 1245 shall be applied for purposes of this section; and (2) in the case of the sale or exchange of stock in an S corporation, rules similar to the rules of section 751 shall be applied to that portion of the excess of the amount realized over the adjusted basis of the stock which is attributable to expenditures referred to in subsection (a) (1)(A) of this section.

1255. Gain from disposition of section 126 property


How Current is This?

(a) General rule (1) Ordinary income Except as otherwise provided in this section, if section 126 property is disposed of, the lower of (A) the applicable percentage of the aggregate payments, with respect to such property, excluded from gross income under section126, or (B) the excess of (i) the amount realized (in the case of a sale, exchange, or involuntary conversion), or the fair market value of such section126 property (in the case of any other disposition), over (ii) the adjusted basis of such property, shall be treated as ordinary income. Such gain shall be recognized notwithstanding any other provision of this subtitle, except that this section shall not apply to the extent such gain is recognized as ordinary income under any other provision of this part. (2) Section 126 property

For purposes of this section, section 126 property means any property acquired, improved, or otherwise modified by the application of payments excluded from gross income under section 126. (3) Applicable percentage For purposes of this section, if section 126 property is disposed of less than 10 years after the date of receipt of payments excluded from gross income under section 126, the applicable percentage is 100 percent. If section 126 property is disposed of more than 10 years after such date, the applicable percentage is 100 percent reduced (but not below zero) by 10 percent for each year or part thereof in excess of 10 years such property was held after the date of receipt of the payments. (b) Special rules Under regulations prescribed by the Secretary (1) rules similar to the rules applicable under section 1245 shall be applied for purposes of this section, and (2) for purposes of sections 170 (e),[1] and 751 (c), amounts treated as ordinary income under this section shall be treated in the same manner as amounts treated as ordinary income under section 1245.

[1] So in original. The comma probably should not appear.

1256. Section 1256 contracts marked to market


How Current is This?

(a) General rule For purposes of this subtitle (1) each section 1256 contract held by the taxpayer at the close of the taxable year shall be treated as sold for its fair market value on the last business day of such taxable year (and any gain or loss shall be taken into account for the taxable year), (2) proper adjustment shall be made in the amount of any gain or loss subsequently realized for gain or loss taken into account by reason of paragraph (1), (3) any gain or loss with respect to a section 1256 contract shall be treated as (A) short-term capital gain or loss, to the extent of 40 percent of such gain or loss, and (B) long-term capital gain or loss, to the extent of 60 percent of such gain or loss, and (4) if all the offsetting positions making up any straddle consist of section1256 contracts to which this section applies (and such straddle is not part of a larger straddle), sections 1092 and 263 (g) shall not apply with respect to such straddle. (b) Section 1256 contract defined For purposes of this section, the term section 1256 contract means (1) any regulated futures contract, (2) any foreign currency contract, (3) any nonequity option, (4) any dealer equity option, and (5) any dealer securities futures contract. The term section 1256 contract shall not include any securities futures contract or option on such a contract unless such contract or option is a dealer securities futures contract. (c) Terminations, etc. (1) In general The rules of paragraphs (1), (2), and (3) of subsection (a) shall also apply to the termination (or transfer) during the taxable year of the taxpayers obligation (or rights) with respect to a section 1256 contract by offsetting, by taking or making delivery, by exercise or being exercised, by assignment or being assigned, by lapse, or otherwise. (2) Special rule where taxpayer takes delivery on or exercises part of straddle

If (A) 2 or more section 1256 contracts are part of a straddle (as defined in section 1092 (c)), and (B) the taxpayer takes delivery under or exercises any of such contracts, then, for purposes of this section, each of the other such contracts shall be treated as terminated on the day on which the taxpayer took delivery. (3) Fair market value taken into account For purposes of this subsection, fair market value at the time of the termination (or transfer) shall be taken into account. (d) Elections with respect to mixed straddles (1) Election The taxpayer may elect to have this section not to apply to all section1256 contracts which are part of a mixed straddle. (2) Time and manner An election under paragraph (1) shall be made at such time and in such manner as the Secretary may by regulations prescribe. (3) Election revocable only with consent An election under paragraph (1) shall apply to the taxpayers taxable year for which made and to all subsequent taxable years, unless the Secretary consents to a revocation of such election. (4) Mixed straddle For purposes of this subsection, the term mixed straddle means any straddle (as defined in section 1092 (c)) (A) at least 1 (but not all) of the positions of which are section 1256contracts, and (B) with respect to which each position forming part of such straddle is clearly identified, before the close of the day on which the first section 1256 contract forming part of the straddle is acquired (or such earlier time as the Secretary may prescribe by regulations), as being part of such straddle. (e) Mark to market not to apply to hedging transactions (1) Section not to apply Subsection (a) shall not apply in the case of a hedging transaction. (2) Definition of hedging transaction For purposes of this subsection, the term hedging transaction means any hedging transaction (as defined in section 1221 (b)(2)(A)) if, before the close of the day on which such transaction was entered into (or such earlier time as the Secretary may prescribe by regulations), the taxpayer clearly identifies such transaction as being a hedging transaction. (3) Special rule for syndicates (A) In general Notwithstanding paragraph (2), the term hedging transaction shall not include any transaction entered into by or for a syndicate. (B) Syndicate defined For purposes of subparagraph (A), the term syndicate means any partnership or other entity (other than a corporation which is not an S corporation) if more than 35 percent of the losses of such entity during the taxable year are allocable to limited partners or limited entrepreneurs (within the meaning of section 464 (e)(2)). (C) Holdings attributable to active management For purposes of subparagraph (B), an interest in an entity shall not be treated as held by a limited partner or a limited entrepreneur (within the meaning of section 464 (e)(2)) (i) for any period if during such period such interest is held by an individual who actively participates at all times during such period in the management of such entity, (ii) for any period if during such period such interest is held by the spouse, children, grandchildren, and parents of an individual who actively participates at all times during such period in the management of such entity, (iii) if such interest is held by an individual who actively participated in the management of such entity for a period of not less than 5 years, (iv) if such interest is held by the estate of an individual who actively participated in the management of such entity or is held by the estate of an individual if with respect to such individual such interest was at any time described in clause (ii), or

(v) if the Secretary determines (by regulations or otherwise) that such interest should be treated as held by an individual who actively participates in the management of such entity, and that such entity and such interest are not used (or to be used) for taxavoidance purposes. For purposes of this subparagraph, a legally adopted child of an individual shall be treated as a child of such individual by blood. (4) Limitation on losses from hedging transactions (A) In general (i) Limitation Any hedging loss for a taxable year which is allocable to any limited partner or limited entrepreneur (within the meaning of paragraph (3)) shall be allowed only to the extent of the taxable income of such limited partner or entrepreneur for such taxable year attributable to the trade or business in which the hedging transactions were entered into. For purposes of the preceding sentence, taxable income shall be determined by not taking into account items attributable to hedging transactions. (ii) Carryover of disallowed loss Any hedging loss disallowed under clause (i) shall be treated as a deduction attributable to a hedging transaction allowable in the first succeeding taxable year. (B) Exception where economic loss Subparagraph (A)(i) shall not apply to any hedging loss to the extent that such loss exceeds the aggregate unrecognized gains from hedging transactions as of the close of the taxable year attributable to the trade or business in which the hedging transactions were entered into. (C) Exception for certain hedging transactions In the case of any hedging transaction relating to property other than stock or securities, this paragraph shall apply only in the case of a taxpayer described in section 465 (a)(1). (D) Hedging loss The term hedging loss means the excess of (i) the deductions allowable under this chapter for the taxable year attributable to hedging transactions (determined without regard to subparagraph (A)(i)), over (ii) income received or accrued by the taxpayer during such taxable year from such transactions. (E) Unrecognized gain The term unrecognized gain has the meaning given to such term by section 1092 (a)(3). (f) Special rules (1) Denial of capital gains treatment for property identified as part of a hedging transaction For purposes of this title, gain from any property shall in no event be considered as gain from the sale or exchange of a capital asset if such property was at any time personal property (as defined in section 1092(d)(1)) identified under subsection (e)(2) by the taxpayer as being part of a hedging transaction. (2) Subsection (a)(3) not to apply to ordinary income property Paragraph (3) of subsection (a) shall not apply to any gain or loss which, but for such paragraph, would be ordinary income or loss. (3) Capital gain treatment for traders in section 1256 contracts (A) In general For purposes of this title, gain or loss from trading of section 1256contracts shall be treated as gain or loss from the sale or exchange of a capital asset. (B) Exception for certain hedging transactions Subparagraph (A) shall not apply to any section 1256 contract to the extent such contract is held for purposes of hedging property if any loss with respect to such property in the hands of the taxpayer would be ordinary loss. (C) Treatment of underlying property For purposes of determining whether gain or loss with respect to any property is ordinary income or loss, the fact that the taxpayer is actively engaged in dealing in or trading section 1256 contracts related to such property shall not be taken into account. (4) Special rule for dealer equity options and dealer securities futures contracts of limited partners or limited entrepreneurs

In the case of any gain or loss with respect to dealer equity options, or dealer securities futures contracts, which are allocable to limited partners or limited entrepreneurs (within the meaning of subsection (e)(3)) (A) paragraph (3) of subsection (a) shall not apply to any such gain or loss, and (B) all such gains or losses shall be treated as short-term capital gains or losses, as the case may be. (5) Special rule related to losses Section 1091 (relating to loss from wash sales of stock or securities) shall not apply to any loss taken into account by reason of paragraph (1) of subsection (a). (g) Definitions For purposes of this section (1) Regulated futures contracts defined The term regulated futures contract means a contract (A) with respect to which the amount required to be deposited and the amount which may be withdrawn depends on a system of marking to market, and (B) which is traded on or subject to the rules of a qualified board or exchange. (2) Foreign currency contract defined (A) Foreign currency contract The term foreign currency contract means a contract (i) which requires delivery of, or the settlement of which depends on the value of, a foreign currency which is a currency in which positions are also traded through regulated futures contracts, (ii) which is traded in the interbank market, and (iii) which is entered into at arms length at a price determined by reference to the price in the interbank market. (B) Regulations The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the purposes of subparagraph (A), including regulations excluding from the application of subparagraph (A) any contract (or type of contract) if its application thereto would be inconsistent with such purposes. (3) Nonequity option The term nonequity option means any listed option which is not an equity option. (4) Dealer equity option The term dealer equity option means, with respect to an options dealer, any listed option which (A) is an equity option, (B) is purchased or granted by such options dealer in the normal course of his activity of dealing in options, and (C) is listed on the qualified board or exchange on which such options dealer is registered. (5) Listed option The term listed option means any option (other than a right to acquire stock from the issuer) which is traded on (or subject to the rules of) a qualified board or exchange. (6) Equity option The term equity option means any option (A) to buy or sell stock, or (B) the value of which is determined directly or indirectly by reference to any stock or any narrow-based security index (as defined in section 3(a)(55) of the Securities Exchange Act of 1934, as in effect on the date of the enactment of this paragraph). The term equity option includes such an option on a group of stocks only if such group meets the requirements for a narrow-based security index (as so defined). The Secretary may prescribe regulations regarding the status of options the values of which are determined directly or indirectly by reference to any index which becomes (or ceases to be) a narrowbased security index (as so defined). (7) Qualified board or exchange The term qualified board or exchange means (A) a national securities exchange which is registered with the Securities and Exchange Commission,

(B) a domestic board of trade designated as a contract market by the Commodity Futures Trading Commission, or (C) any other exchange, board of trade, or other market which the Secretary determines has rules adequate to carry out the purposes of this section. (8) Options dealer (A) In general The term options dealer means any person registered with an appropriate national securities exchange as a market maker or specialist in listed options. (B) Persons trading in other markets In any case in which the Secretary makes a determination under subparagraph (C) of paragraph (7), the term options dealer also includes any person whom the Secretary determines performs functions similar to the persons described in subparagraph (A). Such determinations shall be made to the extent appropriate to carry out the purposes of this section. (9) Dealer securities futures contract (A) In general The term dealer securities futures contract means, with respect to any dealer, any securities futures contract, and any option on such a contract, which (i) is entered into by such dealer (or, in the case of an option, is purchased or granted by such dealer) in the normal course of his activity of dealing in such contracts or options, as the case may be, and (ii) is traded on a qualified board or exchange. (B) Dealer For purposes of subparagraph (A), a person shall be treated as a dealer in securities futures contracts or options on such contracts if the Secretary determines that such person performs, with respect to such contracts or options, as the case may be, functions similar to the functions performed by persons described in paragraph (8)(A). Such determination shall be made to the extent appropriate to carry out the purposes of this section. (C) Securities futures contract The term securities futures contract has the meaning given to such term by section 1234B.

1257. Disposition of converted wetlands or highly erodible croplands


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(a) Gain treated as ordinary income Any gain on the disposition of converted wetland or highly erodible cropland shall be treated as ordinary income. Such gain shall be recognized notwithstanding any other provision of this subtitle, except that this section shall not apply to the extent such gain is recognized as ordinary income under any other provision of this part. (b) Loss treated as long-term capital loss Any loss recognized on the disposition of converted wetland or highly erodible cropland shall be treated as a long-term capital loss. (c) Definitions For purposes of this section (1) Converted wetland The term converted wetland means any converted wetland (as defined in section 1201(4) [1] of the Food Security Act of 1985 (16 U.S.C. 3801(4))) held (A) by the person whose activities resulted in such land being converted wetland, or (B) by any other person who at any time used such land for farming purposes. (2) Highly erodible cropland The term highly erodible cropland means any highly erodible cropland (as defined in section 1201(6) [1] of the Food Security Act of 1985 (16U.S.C. 3801 (6))), if at any time the taxpayer used such land for farming purposes (other than the grazing of animals).

(3) Treatment of successors If any land is converted wetland or highly erodible cropland in the hands of any person, such land shall be treated as converted wetland or highly erodible cropland in the hands of any other person whose adjusted basis in such land is determined (in whole or in part) by reference to the adjusted basis of such land in the hands of such person. (d) Special rules Under regulations prescribed by the Secretary, rules similar to the rules applicable under section 1245 shall apply for purposes of subsection (a). For purposes of sections 170 (e) and 751 (c), amounts treated as ordinary income under subsection (a) shall be treated in the same manner as amounts treated as ordinary income under section 1245.

[1] See References in Text note below.

1258. Recharacterization of gain from certain financial transactions


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(a) General rule In the case of any gain (1) which (but for this section) would be treated as gain from the sale or exchange of a capital asset, and (2) which is recognized on the disposition or other termination of any position which was held as part of a conversion transaction, such gain (to the extent such gain does not exceed the applicable imputed income amount) shall be treated as ordinary income. (b) Applicable imputed income amount For purposes of subsection (a), the term applicable imputed income amount means, with respect to any disposition or other termination referred to in subsection (a), an amount equal to (1) the amount of interest which would have accrued on the taxpayers net investment in the conversion transaction for the period ending on the date of such disposition or other termination (or, if earlier, the date on which the requirements of subsection (c) ceased to be satisfied) at a rate equal to 120 percent of the applicable rate, reduced by (2) the amount treated as ordinary income under subsection (a) with respect to any prior disposition or other termination of a position which was held as a part of such transaction. The Secretary shall by regulations provide for such reductions in the applicable imputed income amount as may be appropriate by reason of amounts capitalized under section 263 (g), ordinary income received, or otherwise. (c) Conversion transaction For purposes of this section, the term conversion transaction means any transaction (1) substantially all of the taxpayers expected return from which is attributable to the time value of the taxpayers net investment in such transaction, and (2) which is (A) the holding of any property (whether or not actively traded), and the entering into a contract to sell such property (or substantially identical property) at a price determined in accordance with such contract, but only if such property was acquired and such contract was entered into on a substantially contemporaneous basis, (B) an applicable straddle, (C) any other transaction which is marketed or sold as producing capital gains from a transaction described in paragraph (1), or (D) any other transaction specified in regulations prescribed by the Secretary. (d) Definitions and special rules For purposes of this section

(1) Applicable straddle The term applicable straddle means any straddle (within the meaning of section 1092 (c)). (2) Applicable rate The term applicable rate means (A) the applicable Federal rate determined under section 1274 (d)(compounded semiannually) as if the conversion transaction were a debt instrument, or (B) if the term of the conversion transaction is indefinite, the Federal short-term rates in effect under section 6621 (b) during the period of the conversion transaction (compounded daily). (3) Treatment of built-in losses (A) In general If any position with a built-in loss becomes part of a conversion transaction (i) for purposes of applying this subtitle to such position for periods after such position becomes part of such transaction, such position shall be taken into account at its fair market value as of the time it became part of such transaction, except that (ii) upon the disposition or other termination of such position in a transaction in which gain or loss is recognized, such built-in loss shall be recognized and shall have a character determined without regard to this section. (B) Built-in loss For purposes of subparagraph (A), the term built-in loss means the loss (if any) which would have been realized if the position had been disposed of or otherwise terminated at its fair market value as of the time such position became part of the conversion transaction. (4) Position taken into account at fair market value In determining the taxpayers net investment in any conversion transaction, there shall be included the fair market value of any position which becomes part of such transaction (determined as of the time such position became part of such transaction). (5) Special rule for options dealers and commodities traders (A) In general Subsection (a) shall not apply to transactions (i) of an options dealer in the normal course of the dealers trade or business of dealing in options, or (ii) of a commodities trader in the normal course of the traders trade or business of trading section 1256 contracts. (B) Definitions For purposes of this paragraph (i) Options dealer The term options dealer has the meaning given such term by section 1256 (g)(8). (ii) Commodities trader The term commodities trader means any person who is a member (or, except as otherwise provided in regulations, is entitled to trade as a member) of a domestic board of trade which is designated as a contract market by the Commodity Futures Trading Commission. (C) Limited partners and limited entrepreneurs In the case of any gain from a transaction recognized by an entity which is allocable to a limited partner or limited entrepreneur (within the meaning of section 464 (e)(2)), subparagraph (A) shall not apply if (i) substantially all of the limited partners (or limited entrepreneurs) expected return from the entity is attributable to the time value of the partners (or entrepreneurs) net investment in such entity, (ii) the transaction (or the interest in the entity) was marketed or sold as producing capital gains treatment from a transaction described in subsection (c)(1), or (iii) the transaction (or the interest in the entity) is a transaction (or interest) specified in regulations prescribed by the Secretary.

1259. Constructive sales treatment for appreciated financial positions


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(a) In general If there is a constructive sale of an appreciated financial position (1) the taxpayer shall recognize gain as if such position were sold, assigned, or otherwise terminated at its fair market value on the date of such constructive sale (and any gain shall be taken into account for the taxable year which includes such date), and (2) for purposes of applying this title for periods after the constructive sale (A) proper adjustment shall be made in the amount of any gain or loss subsequently realized with respect to such position for any gain taken into account by reason of paragraph (1), and (B) the holding period of such position shall be determined as if such position were originally acquired on the date of such constructive sale. (b) Appreciated financial position For purposes of this section (1) In general Except as provided in paragraph (2), the term appreciated financial position means any position with respect to any stock, debt instrument, or partnership interest if there would be gain were such position sold, assigned, or otherwise terminated at its fair market value. (2) Exceptions The term appreciated financial position shall not include (A) any position with respect to debt if (i) the position unconditionally entitles the holder to receive a specified principal amount, (ii) the interest payments (or other similar amounts) with respect to such position meet the requirements of clause (i) of section 860G (a)(1)(B), and (iii) such position is not convertible (directly or indirectly) into stock of the issuer or any related person, (B) any hedge with respect to a position described in subparagraph (A), and (C) any position which is marked to market under any provision of this title or the regulations thereunder. (3) Position The term position means an interest, including a futures or forward contract, short sale, or option. (c) Constructive sale For purposes of this section (1) In general A taxpayer shall be treated as having made a constructive sale of an appreciated financial position if the taxpayer (or a related person) (A) enters into a short sale of the same or substantially identical property, (B) enters into an offsetting notional principal contract with respect to the same or substantially identical property, (C) enters into a futures or forward contract to deliver the same or substantially identical property, (D) in the case of an appreciated financial position that is a short sale or a contract described in subparagraph (B) or (C) with respect to any property, acquires the same or substantially identical property, or (E) to the extent prescribed by the Secretary in regulations, enters into 1 or more other transactions (or acquires 1 or more positions) that have substantially the same effect as a transaction described in any of the preceding subparagraphs. (2) Exception for sales of nonpublicly traded property A taxpayer shall not be treated as having made a constructive sale solely because the taxpayer enters into a contract for sale of any stock, debt instrument, or partnership interest which is not a marketable security (as defined in section 453 (f)) if the contract settles within 1 year after the date such contract is entered into. (3) Exception for certain closed transactions (A) In general

In applying this section, there shall be disregarded any transaction (which would otherwise cause a constructive sale) during the taxable year if (i) such transaction is closed on or before the 30th day after the close of such taxable year, (ii) the taxpayer holds the appreciated financial position throughout the 60-day period beginning on the date such transaction is closed, and (iii) at no time during such 60-day period is the taxpayers risk of loss with respect to such position reduced by reason of a circumstance which would be described in section 246 (c) (4) if references to stock included references to such position. (B) Treatment of certain closed transactions where risk of loss on appreciated financial position diminished If (i) a transaction, which would otherwise cause a constructive sale of an appreciated financial position, is closed during the taxable year or during the 30 days thereafter, and (ii) another transaction is entered into during the 60-day period beginning on the date the transaction referred to in clause (i) is closed (I) which would (but for this subparagraph) cause the requirement of subparagraph (A)(iii) not to be met with respect to the transaction described in clause (i) of this subparagraph, (II) which is closed on or before the 30th day after the close of the taxable year in which the transaction referred to in clause (i) occurs, and (III) which meets the requirements of clauses (ii) and (iii) of subparagraph (A), the transaction referred to in clause (ii) shall be disregarded for purposes of determining whether the requirements of subparagraph (A)(iii) are met with respect to the transaction described in clause (i). (4) Related person A person is related to another person with respect to a transaction if (A) the relationship is described in section 267 (b) or 707 (b), and (B) such transaction is entered into with a view toward avoiding the purposes of this section. (d) Other definitions For purposes of this section (1) Forward contract The term forward contract means a contract to deliver a substantially fixed amount of property (including cash) for a substantially fixed price. (2) Offsetting notional principal contract The term offsetting notional principal contract means, with respect to any property, an agreement which includes (A) a requirement to pay (or provide credit for) all or substantially all of the investment yield (including appreciation) on such property for a specified period, and (B) a right to be reimbursed for (or receive credit for) all or substantially all of any decline in the value of such property. (e) Special rules (1) Treatment of subsequent sale of position which was deemed sold If (A) there is a constructive sale of any appreciated financial position, (B) such position is subsequently disposed of, and (C) at the time of such disposition, the transaction resulting in the constructive sale of such position is open with respect to the taxpayer or any related person, solely for purposes of determining whether the taxpayer has entered into a constructive sale of any other appreciated financial position held by the taxpayer, the taxpayer shall be treated as entering into such transaction immediately after such disposition. For purposes of the preceding sentence, an assignment or other termination shall be treated as a disposition. (2) Certain trust instruments treated as stock For purposes of this section, an interest in a trust which is actively traded (within the meaning of section 1092 (d)(1)) shall be treated as stock unless substantially all (by value) of the property held by the trust is debt described in subsection (b)(2)(A). (3) Multiple positions in property If a taxpayer holds multiple positions in property, the determination of whether a specific transaction is a constructive sale and, if so, which appreciated financial position is deemed sold shall be made in the same manner as actual sales.

(f) Regulations The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the purposes of this section.

1260. Gains from constructive ownership transactions


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(a) In general If the taxpayer has gain from a constructive ownership transaction with respect to any financial asset and such gain would (without regard to this section) be treated as a long-term capital gain (1) such gain shall be treated as ordinary income to the extent that such gain exceeds the net underlying long-term capital gain, and (2) to the extent such gain is treated as a long-term capital gain after the application of paragraph (1), the determination of the capital gain rate (or rates) applicable to such gain under section 1 (h) shall be determined on the basis of the respective rate (or rates) that would have been applicable to the net underlying long-term capital gain. (b) Interest charge on deferral of gain recognition (1) In general If any gain is treated as ordinary income for any taxable year by reason of subsection (a)(1), the tax imposed by this chapter for such taxable year shall be increased by the amount of interest determined under paragraph (2) with respect to each prior taxable year during any portion of which the constructive ownership transaction was open. Any amount payable under this paragraph shall be taken into account in computing the amount of any deduction allowable to the taxpayer for interest paid or accrued during such taxable year. (2) Amount of interest The amount of interest determined under this paragraph with respect to a prior taxable year is the amount of interest which would have been imposed under section 6601 on the underpayment of tax for such year which would have resulted if the gain (which is treated as ordinary income by reason of subsection (a)(1)) had been included in gross income in the taxable years in which it accrued (determined by treating the income as accruing at a constant rate equal to the applicable Federal rate as in effect on the day the transaction closed). The period during which such interest shall accrue shall end on the due date (without extensions) for the return of tax imposed by this chapter for the taxable year in which such transaction closed. (3) Applicable Federal rate For purposes of paragraph (2), the applicable Federal rate is the applicable Federal rate determined under section 1274 (d) (compounded semiannually) which would apply to a debt instrument with a term equal to the period the transaction was open. (4) No credits against increase in tax Any increase in tax under paragraph (1) shall not be treated as tax imposed by this chapter for purposes of determining (A) the amount of any credit allowable under this chapter, or (B) the amount of the tax imposed by section 55. (c) Financial asset For purposes of this section (1) In general The term financial asset means (A) any equity interest in any pass-thru entity, and (B) to the extent provided in regulations (i) any debt instrument, and (ii) any stock in a corporation which is not a pass-thru entity. (2) Pass-thru entity

For purposes of paragraph (1), the term pass-thru entity means (A) a regulated investment company, (B) a real estate investment trust, (C) an S corporation, (D) a partnership, (E) a trust, (F) a common trust fund, (G) a passive foreign investment company (as defined in section1297 without regard to subsection (d) thereof), and (H) a REMIC. (d) Constructive ownership transaction For purposes of this section (1) In general The taxpayer shall be treated as having entered into a constructive ownership transaction with respect to any financial asset if the taxpayer (A) holds a long position under a notional principal contract with respect to the financial asset, (B) enters into a forward or futures contract to acquire the financial asset, (C) is the holder of a call option, and is the grantor of a put option, with respect to the financial asset and such options have substantially equal strike prices and substantially contemporaneous maturity dates, or (D) to the extent provided in regulations prescribed by the Secretary, enters into one or more other transactions (or acquires one or more positions) that have substantially the same effect as a transaction described in any of the preceding subparagraphs. (2) Exception for positions which are marked to market This section shall not apply to any constructive ownership transaction if all of the positions which are part of such transaction are marked to market under any provision of this title or the regulations thereunder. (3) Long position under notional principal contract A person shall be treated as holding a long position under a notional principal contract with respect to any financial asset if such person (A) has the right to be paid (or receive credit for) all or substantially all of the investment yield (including appreciation) on such financial asset for a specified period, and (B) is obligated to reimburse (or provide credit for) all or substantially all of any decline in the value of such financial asset. (4) Forward contract The term forward contract means any contract to acquire in the future (or provide or receive credit for the future value of) any financial asset. (e) Net underlying long-term capital gain For purposes of this section, in the case of any constructive ownership transaction with respect to any financial asset, the term net underlying long-term capital gain means the aggregate net capital gain that the taxpayer would have had if (1) the financial asset had been acquired for fair market value on the date such transaction was opened and sold for fair market value on the date such transaction was closed, and (2) only gains and losses that would have resulted from the deemed ownership under paragraph (1) were taken into account. The amount of the net underlying long-term capital gain with respect to any financial asset shall be treated as zero unless the amount thereof is established by clear and convincing evidence. (f) Special rule where taxpayer takes delivery Except as provided in regulations prescribed by the Secretary, if a constructive ownership transaction is closed by reason of taking delivery, this section shall be applied as if the taxpayer had sold all the contracts, options, or other positions which are part of such transaction for fair market value on the closing date. The amount of gain recognized under the preceding sentence shall not exceed the amount of gain treated as ordinary income under subsection (a). Proper adjustments shall be made in the amount of any gain or loss subsequently realized for gain recognized and treated as ordinary income under this subsection.

(g) Regulations The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the purposes of this section, including regulations (1) to permit taxpayers to mark to market constructive ownership transactions in lieu of applying this section, and (2) to exclude certain forward contracts which do not convey substantially all of the economic return with respect to a financial asset.

PART VSPECIAL RULES FOR BONDS AND OTHER DEBT INSTRUMENTS


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Subpart AOriginal Issue Discount ( 12711275) Subpart BMarket Discount on Bonds ( 12761278) Subpart CDiscount on Short-Term Obligations ( 12811283) Subpart DMiscellaneous Provisions ( 12861288)

Subpart AOriginal Issue Discount


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1271. Treatment of amounts received on retirement or sale or exchange of debt instruments


1272. Current inclusion in income of original issue discount 1273. Determination of amount of original issue discount

1274. Determination of issue price in the case of certain debt instruments issued for property 1274A. Special rules for certain transactions where stated principal amount does not exceed $2,800,000 1275. Other definitions and special rules

1271. Treatment of amounts received on retirement or sale or exchange of debt instruments


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(a) General rule

For purposes of this title (1) Retirement Amounts received by the holder on retirement of any debt instrument shall be considered as amounts received in exchange therefor. (2) Ordinary income on sale or exchange where intention to call before maturity (A) In general If at the time of original issue there was an intention to call a debt instrument before maturity, any gain realized on the sale or exchange thereof which does not exceed an amount equal to (i) the original issue discount, reduced by (ii) the portion of original issue discount previously includible in the gross income of any holder (without regard to subsection (a)(7) or (b)(4) of section 1272 (or the corresponding provisions of prior law)), shall be treated as ordinary income. (B) Exceptions This paragraph (and paragraph (2) of subsection (c)) shall not apply to (i) any tax-exempt obligation, or (ii) any holder who has purchased the debt instrument at a premium. (3) Certain short-term Government obligations (A) In general On the sale or exchange of any short-term Government obligation, any gain realized which does not exceed an amount equal to the ratable share of the acquisition discount shall be treated as ordinary income. (B) Short-term Government obligation For purposes of this paragraph, the term short-term Government obligation means any obligation of the United States or any of its possessions, or of a State or any political subdivision thereof, or of the District of Columbia, which has a fixed maturity date not more than 1 year from the date of issue. Such term does not include any tax-exempt obligation. (C) Acquisition discount For purposes of this paragraph, the term acquisition discount means the excess of the stated redemption price at maturity over the taxpayers basis for the obligation. (D) Ratable share For purposes of this paragraph, except as provided in subparagraph (E), the ratable share of the acquisition discount is an amount which bears the same ratio to such discount as (i) the number of days which the taxpayer held the obligation, bears to (ii) the number of days after the date the taxpayer acquired the obligation and up to (and including) the date of its maturity. (E) Election of accrual on basis of constant interest rate At the election of the taxpayer with respect to any obligation, the ratable share of the acquisition discount is the portion of the acquisition discount accruing while the taxpayer held the obligation determined (under regulations prescribed by the Secretary) on the basis of (i) the taxpayers yield to maturity based on the taxpayers cost of acquiring the obligation, and (ii) compounding daily. An election under this subparagraph, once made with respect to any obligation, shall be irrevocable. (4) Certain short-term nongovernment obligations (A) In general On the sale or exchange of any short-term nongovernment obligation, any gain realized which does not exceed an amount equal to the ratable share of the original issue discount shall be treated as ordinary income. (B) Short-term nongovernment obligation For purposes of this paragraph, the term short-term nongovernment obligation means any obligation which (i) has a fixed maturity date not more than 1 year from the date of the issue, and (ii) is not a short-term Government obligation (as defined in paragraph (3)(B) without regard to the last sentence thereof). (C) Ratable share

For purposes of this paragraph, except as provided in subparagraph (D), the ratable share of the original issue discount is an amount which bears the same ratio to such discount as (i) the number of days which the taxpayer held the obligation, bears to (ii) the number of days after the date of original issue and up to (and including) the date of its maturity. (D) Election of accrual on basis of constant interest rate At the election of the taxpayer with respect to any obligation, the ratable share of the original issue discount is the portion of the original issue discount accruing while the taxpayer held the obligation determined (under regulations prescribed by the Secretary) on the basis of (i) the yield to maturity based on the issue price of the obligation, and (ii) compounding daily. Any election under this subparagraph, once made with respect to any obligation, shall be irrevocable. (b) Exception for certain obligations (1) In general This section shall not apply to (A) any obligation issued by a natural person before June 9, 1997, and (B) any obligation issued before July 2, 1982, by an issuer which is not a corporation and is not a government or political subdivision thereof. (2) Termination Paragraph (1) shall not apply to any obligation purchased (within the meaning of section 1272 (d)(1)) after June 8, 1997. (c) Transition rules (1) Special rule for certain obligations issued before January 1, 1955 Paragraph (1) of subsection (a) shall apply to a debt instrument issued before January 1, 1955, only if such instrument was issued with interest coupons or in registered form, or was in such form on March 1, 1954. (2) Special rule for certain obligations with respect to which original issue discount not currently includible (A) In general On the sale or exchange of debt instruments issued by a government or political subdivision thereof after December 31, 1954, and before July 2, 1982, or by a corporation after December 31, 1954, and on or before May 27, 1969, any gain realized which does not exceed (i) an amount equal to the original issue discount, or (ii) if at the time of original issue there was no intention to call the debt instrument before maturity, an amount which bears the same ratio to the original issue discount as the number of complete months that the debt instrument was held by the taxpayer bears to the number of complete months from the date of original issue to the date of maturity, shall be considered as ordinary income. (B) Subsection (a)(2)(A) not to apply Subsection (a)(2)(A) shall not apply to any debt instrument referred to in subparagraph (A) of this paragraph. (C) Cross reference For current inclusion of original issue discount, see section1272. (d) Double inclusion in income not required This section and sections 1272 and 1286 shall not require the inclusion of any amount previously includible in gross income.

1272. Current inclusion in income of original issue discount


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(a) Original issue discount on debt instruments issued after July 1, 1982, included in income on basis of constant interest rate (1) General rule For purposes of this title, there shall be included in the gross income of the holder of any debt instrument having original issue discount issued after July 1, 1982, an amount equal to the sum of the daily portions of the original issue discount for each day during the taxable year on which such holder held such debt instrument. (2) Exceptions Paragraph (1) shall not apply to (A) Tax-exempt obligations Any tax-exempt obligation. (B) United States savings bonds Any United States savings bond. (C) Short-term obligations Any debt instrument which has a fixed maturity date not more than 1 year from the date of issue. (D) Obligations issued by natural persons before March 2, 1984 Any obligation issued by a natural person before March 2, 1984. (E) Loans between natural persons (i) In general Any loan made by a natural person to another natural person if (I) such loan is not made in the course of a trade or business of the lender, and (II) the amount of such loan (when increased by the outstanding amount of prior loans by such natural person to such other natural person) does not exceed $10,000. (ii) Clause (i) not to apply where tax avoidance a principal purpose Clause (i) shall not apply if the loan has as 1 of its principal purposes the avoidance of any Federal tax. (iii) Treatment of husband and wife For purposes of this subparagraph, a husband and wife shall be treated as 1 person. The preceding sentence shall not apply where the spouses lived apart at all times during the taxable year in which the loan is made. (3) Determination of daily portions For purposes of paragraph (1), the daily portion of the original issue discount on any debt instrument shall be determined by allocating to each day in any accrual period its ratable portion of the increase during such accrual period in the adjusted issue price of the debt instrument. For purposes of the preceding sentence, the increase in the adjusted issue price for any accrual period shall be an amount equal to the excess (if any) of (A) the product of (i) the adjusted issue price of the debt instrument at the beginning of such accrual period, and (ii) the yield to maturity (determined on the basis of compounding at the close of each accrual period and properly adjusted for the length of the accrual period), over (B) the sum of the amounts payable as interest on such debt instrument during such accrual period. (4) Adjusted issue price For purposes of this subsection, the adjusted issue price of any debt instrument at the beginning of any accrual period is the sum of (A) the issue price of such debt instrument, plus (B) the adjustments under this subsection to such issue price for all periods before the first day of such accrual period. (5) Accrual period Except as otherwise provided in regulations prescribed by the Secretary, the term accrual period means a 6-month period (or shorter period from the date of original issue of the debt instrument) which ends on a day in the calendar year corresponding to the maturity date of the debt instrument or the date 6 months before such maturity date. (6) Determination of daily portions where principal subject to acceleration (A) In general In the case of any debt instrument to which this paragraph applies, the daily portion of the original issue discount shall be determined by allocating to each day in any accrual period its ratable portion of the excess (if any) of (i) the sum of

(I) the present value determined under subparagraph (B) of all remaining payments under the debt instrument as of the close of such period, and (II) the payments during the accrual period of amounts included in the stated redemption price of the debt instrument, over (ii) the adjusted issue price of such debt instrument at the beginning of such period. (B) Determination of present value For purposes of subparagraph (A), the present value shall be determined on the basis of (i) the original yield to maturity (determined on the basis of compounding at the close of each accrual period and properly adjusted for the length of the accrual period), (ii) events which have occurred before the close of the accrual period, and (iii) a prepayment assumption determined in the manner prescribed by regulations. (C) Debt instruments to which paragraph applies This paragraph applies to (i) any regular interest in a REMIC or qualified mortgage held by a REMIC, (ii) any other debt instrument if payments under such debt instrument may be accelerated by reason of prepayments of other obligations securing such debt instrument (or, to the extent provided in regulations, by reason of other events), or (iii) any pool of debt instruments the yield on which may be affected by reason of prepayments (or to the extent provided in regulations, by reason of other events). To the extent provided in regulations prescribed by the Secretary, in the case of a small business engaged in the trade or business of selling tangible personal property at retail, clause (iii) shall not apply to debt instruments incurred in the ordinary course of such trade or business while held by such business. (7) Reduction where subsequent holder pays acquisition premium (A) Reduction For purposes of this subsection, in the case of any purchase after its original issue of a debt instrument to which this subsection applies, the daily portion for any day shall be reduced by an amount equal to the amount which would be the daily portion for such day (without regard to this paragraph) multiplied by the fraction determined under subparagraph (B). (B) Determination of fraction For purposes of subparagraph (A), the fraction determined under this subparagraph is a fraction (i) the numerator of which is the excess (if any) of (I) the cost of such debt instrument incurred by the purchaser, over (II) the issue price of such debt instrument, increased by the portion of original issue discount previously includible in the gross income of any holder (computed without regard to this paragraph), and (ii) the denominator of which is the sum of the daily portions for such debt instrument for all days after the date of such purchase and ending on the stated maturity date (computed without regard to this paragraph). (b) Ratable inclusion retained for corporate debt instruments issued before July 2, 1982 (1) General rule There shall be included in the gross income of the holder of any debt instrument issued by a corporation after May 27, 1969, and before July 2, 1982 (A) the ratable monthly portion of original issue discount, multiplied by (B) the number of complete months (plus any fractional part of a month determined under paragraph (3)) such holder held such debt instrument during the taxable year. (2) Determination of ratable monthly portion Except as provided in paragraph (4), the ratable monthly portion of original issue discount shall equal (A) the original issue discount, divided by (B) the number of complete months from the date of original issue to the stated maturity date of the debt instrument. (3) Month defined For purposes of this subsection (A) Complete month

A complete month commences with the date of original issue and the corresponding day of each succeeding calendar month (or the last day of a calendar month in which there is no corresponding day). (B) Transfers during month In any case where a debt instrument is acquired on any day other than a day determined under subparagraph (A), the ratable monthly portion of original issue discount for the complete month (or partial month) in which such acquisition occurs shall be allocated between the transferor and the transferee in accordance with the number of days in such complete (or partial) month each held the debt instrument. (4) Reduction where subsequent holder pays acquisition premium (A) Reduction For purposes of this subsection, the ratable monthly portion of original issue discount shall not include its share of the acquisition premium. (B) Share of acquisition premium For purposes of subparagraph (A), any months share of the acquisition premium is an amount (determined at the time of the purchase) equal to (i) the excess of (I) the cost of such debt instrument incurred by the holder, over (II) the issue price of such debt instrument, increased by the portion of original issue discount previously includible in the gross income of any holder (computed without regard to this paragraph), (ii) divided by the number of complete months (plus any fractional part of a month) from the date of such purchase to the stated maturity date of such debt instrument. (c) Exceptions This section shall not apply to any holder (1) who has purchased the debt instrument at a premium, or (2) which is a life insurance company to which section 811 (b) applies. (d) Definition and special rule (1) Purchase defined For purposes of this section, the term purchase means (A) any acquisition of a debt instrument, where (B) the basis of the debt instrument is not determined in whole or in part by reference to the adjusted basis of such debt instrument in the hands of the person from whom acquired. (2) Basis adjustment The basis of any debt instrument in the hands of the holder thereof shall be increased by the amount included in his gross income pursuant to this section.

1273. Determination of amount of original issue discount


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(a) General rule For purposes of this subpart (1) In general The term original issue discount means the excess (if any) of (A) the stated redemption price at maturity, over (B) the issue price. (2) Stated redemption price at maturity The term stated redemption price at maturity means the amount fixed by the last modification of the purchase agreement and includes interest and other amounts payable at that time (other than any interest based on a fixed rate, and payable unconditionally at fixed periodic intervals of 1 year or less during the entire term of the debt instrument). (3) 1/4 of 1 percent de minimis rule If the original issue discount determined under paragraph (1) is less than

(A) 1/4 of 1 percent of the stated redemption price at maturity, multiplied by (B) the number of complete years to maturity, then the original issue discount shall be treated as zero. (b) Issue price For purposes of this subpart (1) Publicly offered debt instruments not issued for property In the case of any issue of debt instruments (A) publicly offered, and (B) not issued for property, the issue price is the initial offering price to the public (excluding bond houses and brokers) at which price a substantial amount of such debt instruments was sold. (2) Other debt instruments not issued for property In the case of any issue of debt instruments not issued for property and not publicly offered, the issue price of each such instrument is the price paid by the first buyer of such debt instrument. (3) Debt instruments issued for property where there is public trading In the case of a debt instrument which is issued for property and which (A) is part of an issue a portion of which is traded on an established securities market, or (B) (i) is issued for stock or securities which are traded on an established securities market, or (ii) to the extent provided in regulations, is issued for property (other than stock or securities) of a kind regularly traded on an established market, the issue price of such debt instrument shall be the fair market value of such property. (4) Other cases Except in any case (A) to which paragraph (1), (2), or (3) of this subsection applies, or (B) to which section 1274 applies, the issue price of a debt instrument which is issued for property shall be the stated redemption price at maturity. (5) Property In applying this subsection, the term property includes services and the right to use property, but such term does not include money. (c) Special rules for applying subsection (b) For purposes of subsection (b) (1) Initial offering price; price paid by the first buyer The terms initial offering price and price paid by the first buyer include the aggregate payments made by the purchaser under the purchase agreement, including modifications thereof. (2) Treatment of investment units In the case of any debt instrument and an option, security, or other property issued together as an investment unit (A) the issue price for such unit shall be determined in accordance with the rules of this subsection and subsection (b) as if it were a debt instrument, (B) the issue price determined for such unit shall be allocated to each element of such unit on the basis of the relationship of the fair market value of such element to the fair market value of all elements in such unit, and (C) the issue price of any debt instrument included in such unit shall be the portion of the issue price of the unit allocated to the debt instrument under subparagraph (B).

1274. Determination of issue price in the case of certain debt instruments issued for property
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(a) In general

In the case of any debt instrument to which this section applies, for purposes of this subpart, the issue price shall be (1) where there is adequate stated interest, the stated principal amount, or (2) in any other case, the imputed principal amount. (b) Imputed principal amount For purposes of this section (1) In general Except as provided in paragraph (3), the imputed principal amount of any debt instrument shall be equal to the sum of the present values of all payments due under such debt instrument. (2) Determination of present value For purposes of paragraph (1), the present value of a payment shall be determined in the manner provided by regulations prescribed by the Secretary (A) as of the date of the sale or exchange, and (B) by using a discount rate equal to the applicable Federal rate, compounded semiannually. (3) Fair market value rule in potentially abusive situations (A) In general In the case of any potentially abusive situation, the imputed principal amount of any debt instrument received in exchange for property shall be the fair market value of such property adjusted to take into account other consideration involved in the transaction. (B) Potentially abusive situation defined For purposes of subparagraph (A), the term potentially abusive situation means (i) a tax shelter (as defined in section 6662 (d)(2)(C)(iii)),[1] and (ii) any other situation which, by reason of (I) recent sales transactions, (II) nonrecourse financing, (III) financing with a term in excess of the economic life of the property, or (IV) other circumstances, is of a type which the Secretary specifies by regulations as having potential for tax avoidance. (c) Debt instruments to which section applies (1) In general Except as otherwise provided in this subsection, this section shall apply to any debt instrument given in consideration for the sale or exchange of property if (A) the stated redemption price at maturity for such debt instrument exceeds (i) where there is adequate stated interest, the stated principal amount, or (ii) in any other case, the imputed principal amount of such debt instrument determined under subsection (b), and (B) some or all of the payments due under such debt instrument are due more than 6 months after the date of such sale or exchange. (2) Adequate stated interest For purposes of this section, there is adequate stated interest with respect to any debt instrument if the stated principal amount for such debt instrument is less than or equal to the imputed principal amount of such debt instrument determined under subsection (b). (3) Exceptions This section shall not apply to (A) Sales for $1,000,000 or less of farms by individuals or small businesses (i) In general Any debt instrument arising from the sale or exchange of a farm (within the meaning of section 6420 (c)(2)) (I) by an individual, estate, or testamentary trust, (II) by a corporation which as of the date of the sale or exchange is a small business corporation (as defined in section1244 (c)(3)), or (III) by a partnership which as of the date of the sale or exchange meets requirements similar to those of section 1244(c)(3). (ii) $1,000,000 limitation Clause (i) shall apply only if it can be determined at the time of the sale or exchange that the sales price cannot exceed $1,000,000. For purposes of the preceding sentence, all sales and exchanges which are part of the same transaction (or a series of related transactions) shall be treated as 1 sale or exchange.

(B) Sales of principal residences Any debt instrument arising from the sale or exchange by an individual of his principal residence (within the meaning of section121). (C) Sales involving total payments of $250,000 or less (i) In general Any debt instrument arising from the sale or exchange of property if the sum of the following amounts does not exceed $250,000: (I) the aggregate amount of the payments due under such debt instrument and all other debt instruments received as consideration for the sale or exchange, and (II) the aggregate amount of any other consideration to be received for the sale or exchange. (ii) Consideration other than debt instrument taken into account at fair market value For purposes of clause (i), any consideration (other than a debt instrument) shall be taken into account at its fair market value. (iii) Aggregation of transactions For purposes of this subparagraph, all sales and exchanges which are part of the same transaction (or a series of related transactions) shall be treated as 1 sale or exchange. (D) Debt instruments which are publicly traded or issued for publicly traded property Any debt instrument to which section 1273 (b)(3) applies. (E) Certain sales of patents In the case of any transfer described in section 1235 (a) (relating to sale or exchange of patents), any amount contingent on the productivity, use, or disposition of the property transferred. (F) Sales or exchanges to which section 483 (e) applies Any debt instrument to the extent section 483 (e) (relating to certain land transfers between related persons) applies to such instrument. (4) Exception for assumptions If any person (A) in connection with the sale or exchange of property, assumes any debt instrument, or (B) acquires any property subject to any debt instrument, in determining whether this section or section 483 applies to such debt instrument, such assumption (or such acquisition) shall not be taken into account unless the terms and conditions of such debt instrument are modified (or the nature of the transaction is changed) in connection with the assumption (or acquisition). (d) Determination of applicable Federal rate For purposes of this section (1) Applicable Federal rate (A) In general

In the case of adebt instrumentwith a term of: The applicable Federalrate is:

Not over 3 years not over 9 yearsOver 3 years but Over 9 years

The Federal short-term rate. The Federal mid-term rate. The Federal long-term rate.

(B) Determination of rates During each calendar month, the Secretary shall determine the Federal short-term rate, midterm rate, and long-term rate which shall apply during the following calendar month. (C) Federal rate for any calendar month For purposes of this paragraph (i) Federal short-term rate The Federal short-term rate shall be the rate determined by the Secretary based on the average market yield (during any 1-month period selected by the Secretary and ending in the calendar month in which the determination is made) on

outstanding marketable obligations of the United States with remaining periods to maturity of 3 years or less. (ii) Federal mid-term and long-term rates The Federal mid-term and long-term rate shall be determined in accordance with the principles of clause (i). (D) Lower rate permitted in certain cases The Secretary may by regulations permit a rate to be used with respect to any debt instrument which is lower than the applicable Federal rate if the taxpayer establishes to the satisfaction of the Secretary that such lower rate is based on the same principles as the applicable Federal rate and is appropriate for the term of such instrument. (2) Lowest 3-month rate applicable to any sale or exchange (A) In general In the case of any sale or exchange, the applicable Federal rate shall be the lowest 3-month rate. (B) Lowest 3-month rate For purposes of subparagraph (A), the term lowest 3-month rate means the lowest of the applicable Federal rates in effect for any month in the 3-calendar-month period ending with the 1st calendar month in which there is a binding contract in writing for such sale or exchange. (3) Term of debt instrument In determining the term of a debt instrument for purposes of this subsection, under regulations prescribed by the Secretary, there shall be taken into account options to renew or extend. (e) 110 Percent rate where sale-leaseback involved (1) In general In the case of any debt instrument to which this subsection applies, the discount rate used under subsection (b)(2)(B) or section 483 (b) shall be 110 percent of the applicable Federal rate, compounded semiannually. (2) Lower discount rates shall not apply Section 1274A shall not apply to any debt instrument to which this subsection applies. (3) Debt instruments to which this subsection applies This subsection shall apply to any debt instrument given in consideration for the sale or exchange of any property if, pursuant to a plan, the transferor or any related person leases a portion of such property after such sale or exchange.

[1] See References in Text note below.

1274A. Special rules for certain transactions where stated principal amount does not exceed $2,800,000
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(a) Lower discount rate In the case of any qualified debt instrument, the discount rate used for purposes of sections 483 and 1274 shall not exceed 9 percent, compounded semiannually. (b) Qualified debt instrument defined For purposes of this section, the term qualified debt instrument means any debt instrument given in consideration for the sale or exchange of property (other than new section 38 property within the meaning of section 48 (b), as in effect on the day before the date of the enactment of the Revenue Reconciliation Act of 1990) if the stated principal amount of such instrument does not exceed $2,800,000. (c) Election to use cash method where stated principal amount does not exceed $2,000,000

(1) In general In the case of any cash method debt instrument (A) section 1274 shall not apply, and (B) interest on such debt instrument shall be taken into account by both the borrower and the lender under the cash receipts and disbursements method of accounting. (2) Cash method debt instrument For purposes of paragraph (1), the term cash method debt instrument means any qualified debt instrument if (A) the stated principal amount does not exceed $2,000,000, (B) the lender does not use an accrual method of accounting and is not a dealer with respect to the property sold or exchanged, (C) section 1274 would have applied to such instrument but for an election under this subsection, and (D) an election under this subsection is jointly made with respect to such debt instrument by the borrower and lender. (3) Successors bound by election (A) In general Except as provided in subparagraph (B), paragraph (1) shall apply to any successor to the borrower or lender with respect to a cash method debt instrument. (B) Exception where lender transfers debt instrument to accrual method taxpayer If the lender (or any successor) transfers any cash method debt instrument to a taxpayer who uses an accrual method of accounting, this paragraph shall not apply with respect to such instrument for periods after such transfer. (4) Fair market value rule in potentially abusive situations In the case of any cash method debt instrument, section 483 shall be applied as if it included provisions similar to the provisions of section1274 (b)(3). (d) Other special rules (1) Aggregation rules For purposes of this section (A) all sales or exchanges which are part of the same transaction (or a series of related transactions) shall be treated as 1 sale or exchange, and (B) all debt instruments arising from the same transaction (or a series of related transactions) shall be treated as 1 debt instrument. (2) Inflation adjustments (A) In general In the case of any debt instrument arising out of a sale or exchange during any calendar year after 1989, each dollar amount contained in the preceding provisions of this section shall be increased by the inflation adjustment for such calendar year. Any increase under the preceding sentence shall be rounded to the nearest multiple of $100 (or, if such increase is a multiple of $50, such increase shall be increased to the nearest multiple of $100). (B) Inflation adjustment For purposes of subparagraph (A), the inflation adjustment for any calendar year is the percentage (if any) by which (i) the CPI for the preceding calendar year exceeds (ii) the CPI for calendar year 1988. For purposes of the preceding sentence, the CPI for any calendar year is the average of the Consumer Price Index as of the close of the 12-month period ending on September 30 of such calendar year. (e) Regulations The Secretary shall prescribe such regulations as may be necessary to carry out the purposes of this subsection, including (1) regulations coordinating the provisions of this section with other provisions of this title, (2) regulations necessary to prevent the avoidance of tax through the abuse of the provisions of subsection (c), and (3) regulations relating to the treatment of transfers of cash method debt instruments.

1275. Other definitions and special rules


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(a) Definitions For purposes of this subpart (1) Debt instrument (A) In general Except as provided in subparagraph (B), the term debt instrument means a bond, debenture, note, or certificate or other evidence of indebtedness. (B) Exception for certain annuity contracts The term debt instrument shall not include any annuity contract to which section 72 applies and which (i) depends (in whole or in substantial part) on the life expectancy of 1 or more individuals, or (ii) is issued by an insurance company subject to tax under subchapter L (or by an entity described in section 501 (c) and exempt from tax under section 501 (a) which would be subject to tax under subchapter L were it not so exempt) (I) in a transaction in which there is no consideration other than cash or another annuity contract meeting the requirements of this clause, (II) pursuant to the exercise of an election under an insurance contract by a beneficiary thereof on the death of the insured party under such contract, or (III) in a transaction involving a qualified pension or employee benefit plan. (2) Issue date (A) Publicly offered debt instruments In the case of any debt instrument which is publicly offered, the term date of original issue means the date on which the issue was first issued to the public. (B) Issues not publicly offered and not issued for property In the case of any debt instrument to which section 1273 (b)(2)applies, the term date of original issue means the date on which the debt instrument was sold by the issuer. (C) Other debt instruments In the case of any debt instrument not described in subparagraph (A) or (B), the term date of original issue means the date on which the debt instrument was issued in a sale or exchange. (3) Tax-exempt obligation The term tax-exempt obligation means any obligation if (A) the interest on such obligation is not includible in gross income under section 103, or (B) the interest on such obligation is exempt from tax (without regard to the identity of the holder) under any other provision of law. (4) Treatment of obligations distributed by corporations Any debt obligation of a corporation distributed by such corporation with respect to its stock shall be treated as if it had been issued by such corporation for property. (b) Treatment of borrower in the case of certain loans for personal use (1) Sections 1274 and 483 not to apply In the case of the obligor under any debt instrument given in consideration for the sale or exchange of property, sections 1274 and483 shall not apply if such property is personal use property. (2) Original issue discount deducted on cash basis in certain cases In the case of any debt instrument, if (A) such instrument (i) is incurred in connection with the acquisition or carrying of personal use property, and (ii) has original issue discount (determined after the application of paragraph (1)), and (B) the obligor under such instrument uses the cash receipts and disbursements method of accounting, notwithstanding section 163 (e), the original issue discount on such instrument shall be deductible only when paid. (3) Personal use property For purposes of this subsection, the term personal use property means any property substantially all of the use of which by the taxpayer is not in connection with a trade or

business of the taxpayer or an activity described in section 212. The determination of whether property is described in the preceding sentence shall be made as of the time of issuance of the debt instrument. (c) Information requirements (1) Information required to be set forth on instrument (A) In general In the case of any debt instrument having original issue discount, the Secretary may by regulations require that (i) the amount of the original issue discount, and (ii) the issue date, be set forth on such instrument. (B) Special rule for instruments not publicly offered In the case of any issue of debt instruments not publicly offered, the regulations prescribed under subparagraph (A) shall not require the information to be set forth on the debt instrument before any disposition of such instrument by the first buyer. (2) Information required to be submitted to Secretary In the case of any issue of publicly offered debt instruments having original issue discount, the issuer shall (at such time and in such manner as the Secretary shall by regulation prescribe) furnish the Secretary the following information: (A) The amount of the original issue discount. (B) The issue date. (C) Such other information with respect to the issue as the Secretary may by regulations require. For purposes of the preceding sentence, any person who makes a public offering of stripped bonds (or stripped coupons) shall be treated as the issuer of a publicly offered debt instrument having original issue discount. (3) Exceptions This subsection shall not apply to any obligation referred to in section1272 (a)(2) (relating to exceptions from current inclusion of original issue discount). (4) Cross reference For civil penalty for failure to meet requirements of this subsection, see section 6706. (d) Regulation authority The Secretary may prescribe regulations providing that where, by reason of varying rates of interest, put or call options, indefinite maturities, contingent payments, assumptions of debt instruments, or other circumstances, the tax treatment under this subpart (or section 163 (e)) does not carry out the purposes of this subpart (or section 163 (e)), such treatment shall be modified to the extent appropriate to carry out the purposes of this subpart (or section163 (e)).

Subpart BMarket Discount on Bonds


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1276. Disposition gain representing accrued market discount treated as ordinary income

1277. Deferral of interest deduction allocable to accrued market discount 1278. Definitions and special rules

1276. Disposition gain representing accrued market discount treated as ordinary income
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(a) Ordinary income (1) In general Except as otherwise provided in this section, gain on the disposition of any market discount bond shall be treated as ordinary income to the extent it does not exceed the accrued market discount on such bond. Such gain shall be recognized notwithstanding any other provision of this subtitle. (2) Dispositions other than sales, etc. For purposes of paragraph (1), a person disposing of any market discount bond in any transaction other than a sale, exchange, or involuntary conversion shall be treated as realizing an amount equal to the fair market value of the bond. (3) Treatment of partial principal payments (A) In general Any partial principal payment on a market discount bond shall be included in gross income as ordinary income to the extent such payment does not exceed the accrued market discount on such bond. (B) Adjustment If subparagraph (A) applies to any partial principal payment on any market discount bond, for purposes of applying this section to any disposition of (or subsequent partial principal payment on) such bond, the amount of accrued market discount shall be reduced by the amount of such partial principal payment included in gross income under subparagraph (A). (4) Gain treated as interest for certain purposes Except for purposes of sections 103, 871 (a),,[1] 881, 1441, 1442, and 6049 (and such other provisions as may be specified in regulations), any amount treated as ordinary income under paragraph (1) or (3) shall be treated as interest for purposes of this title. (b) Accrued market discount For purposes of this section (1) Ratable accrual Except as otherwise provided in this subsection or subsection (c), the accrued market discount on any bond shall be an amount which bears the same ratio to the market discount on such bond as (A) the number of days which the taxpayer held the bond, bears to (B) the number of days after the date the taxpayer acquired the bond and up to (and including) the date of its maturity. (2) Election of accrual on basis of constant interest rate (in lieu of ratable accrual) (A) In general At the election of the taxpayer with respect to any bond, the accrued market discount on such bond shall be the aggregate amount which would have been includible in the gross income of the taxpayer under section 1272 (a) (determined without regard to paragraph (2) thereof) with respect to such bond for all periods during which the bond was held by the taxpayer if such bond had been (i) originally issued on the date on which such bond was acquired by the taxpayer, (ii) for an issue price equal to the basis of the taxpayer in such bond immediately after its acquisition. (B) Coordination where bond has original issue discount In the case of any bond having original issue discount, for purposes of applying subparagraph (A) (i) the stated redemption price at maturity of such bond shall be treated as equal to its revised issue price, and (ii) the determination of the portion of the original issue discount which would have been includible in the gross income of the taxpayer under section 1272 (a) shall be made under regulations prescribed by the Secretary. (C) Election irrevocable

An election under subparagraph (A), once made with respect to any bond, shall be irrevocable. (3) Special rule where partial principal payments In the case of a bond the principal of which may be paid in 2 or more payments, the amount of accrued market discount shall be determined under regulations prescribed by the Secretary. (c) Treatment of nonrecognition transactions Under regulations prescribed by the Secretary (1) Transferred basis property If a market discount bond is transferred in a nonrecognition transaction and such bond is transferred basis property in the hands of the transferee, for purposes of determining the amount of the accrued market discount with respect to the transferee (A) the transferee shall be treated as having acquired the bond on the date on which it was acquired by the transferor for an amount equal to the basis of the transferor, and (B) proper adjustments shall be made for gain recognized by the transferor on such transfer (and for any original issue discount or market discount included in the gross income of the transferor). (2) Exchanged basis property If any market discount bond is disposed of by the taxpayer in a nonrecognition transaction and paragraph (1) does not apply to such transaction, any accrued market discount determined with respect to the property disposed of to the extent not theretofore treated as ordinary income under subsection (a) (A) shall be treated as accrued market discount with respect to the exchanged basis property received by the taxpayer in such transaction if such property is a market discount bond, and (B) shall be treated as ordinary income on the disposition of the exchanged basis property received by the taxpayer in such exchange if such property is not a market discount bond. (3) Paragraph (1) to apply to certain distributions by corporations or partnerships For purposes of paragraph (1), if the basis of any market discount bond in the hands of a transferee is determined under section 732 (a), or 732(b), such property shall be treated as transferred basis property in the hands of such transferee. (d) Special rules Under regulations prescribed by the Secretary (1) rules similar to the rules of subsection (b) of section 1245 shall apply for purposes of this section; except that (A) paragraph (1) of such subsection shall not apply, (B) an exchange qualifying under section 354 (a), 355 (a), or 356 (a)(determined without regard to subsection (a) of this section) shall be treated as an exchange described in paragraph (3) of such subsection, and (C) paragraph (3) of section 1245 (b) shall be applied as if it did not contain a reference to section 351, and (2) appropriate adjustments shall be made to the basis of any property to reflect gain recognized under subsection (a).

[1] So in original.

1277. Deferral of interest deduction allocable to accrued market discount


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(a) General rule Except as otherwise provided in this section, the net direct interest expense with respect to any market discount bond shall be allowed as a deduction for the taxable year only to the extent that such expense exceeds the portion of the market discount allocable to the days

during the taxable year on which such bond was held by the taxpayer (as determined under the rules of section 1276 (b)). (b) Disallowed deduction allowed for later years (1) Election to take into account in later year where net interest income from bond (A) In general If (i) there is net interest income for any taxable year with respect to any market discount bond, and (ii) the taxpayer makes an election under this subparagraph with respect to such bond, any disallowed interest expense with respect to such bond shall be treated as interest paid or accrued by the taxpayer during such taxable year to the extent such disallowed interest expense does not exceed the net interest income with respect to such bond. (B) Determination of disallowed interest expense For purposes of subparagraph (A), the amount of the disallowed interest expense (i) shall be determined as of the close of the preceding taxable year, and (ii) shall not include any amount previously taken into account under subparagraph (A). (C) Net interest income For purposes of this paragraph, the term net interest income means the excess of the amount determined under paragraph (2) of subsection (c) over the amount determined under paragraph (1) of subsection (c). (2) Remainder of disallowed interest expense allowed for year of disposition (A) In general Except as otherwise provided in this paragraph, the amount of the disallowed interest expense with respect to any market discount bond shall be treated as interest paid or accrued by the taxpayer in the taxable year in which such bond is disposed of. (B) Nonrecognition transactions If any market discount bond is disposed of in a nonrecognition transaction (i) the disallowed interest expense with respect to such bond shall be treated as interest paid or accrued in the year of disposition only to the extent of the amount of gain recognized on such disposition, and (ii) the disallowed interest expense with respect to such property (to the extent not so treated) shall be treated as disallowed interest expense (I) in the case of a transaction described in section 1276(c)(1), of the transferee with respect to the transferred basis property, or (II) in the case of a transaction described in section 1276 (c)(2), with respect to the exchanged basis property. (C) Disallowed interest expense reduced for amounts previously taken into account under paragraph (1) For purposes of this paragraph, the amount of the disallowed interest expense shall not include any amount previously taken into account under paragraph (1). (3) Disallowed interest expense For purposes of this subsection, the term disallowed interest expense means the aggregate amount disallowed under subsection (a) with respect to the market discount bond. (c) Net direct interest expense For purposes of this section, the term net direct interest expense means, with respect to any market discount bond, the excess (if any) of (1) the amount of interest paid or accrued during the taxable year on indebtedness which is incurred or continued to purchase or carry such bond, over (2) the aggregate amount of interest (including original issue discount) includible in gross income for the taxable year with respect to such bond. In the case of any financial institution which is a bank (as defined in section 585(a)(2)), the determination of whether interest is described in paragraph (1) shall be made under principles similar to the principles of section 291 (e)(1)(B)(ii). Under rules similar to the rules of section 265 (a)(5), short sale expenses shall be treated as interest for purposes of determining net direct interest expense.

1278. Definitions and special rules


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(a) In general For purposes of this part (1) Market discount bond (A) In general Except as provided in subparagraph (B), the term market discount bond means any bond having market discount. (B) Exceptions The term market discount bond shall not include (i) Short-term obligations Any obligation with a fixed maturity date not exceeding 6 months from the date of issue. (ii) United States savings bonds Any United States savings bond. (iii) Installment obligations Any installment obligation to which section 453B applies. (C) Section 1277 not applicable to tax-exempt obligations For purposes of section 1277, the term market discount bond shall not include any taxexempt obligation (as defined in section 1275 (a)(3)). (D) Treatment of bonds acquired at original issue (i) In general Except as otherwise provided in this subparagraph or in regulations, the term market discount bond shall not include any bond acquired by the taxpayer at its original issue. (ii) Treatment of bonds acquired for less than issue price Clause (i) shall not apply to any bond if (I) the basis of the taxpayer in such bond is determined under section 1012, and (II) such basis is less than the issue price of such bond determined under subpart A of this part. (iii) Bonds acquired in certain reorganizations Clause (i) shall not apply to any bond issued pursuant to a plan of reorganization (within the meaning of section 368 (a)(1)) in exchange for another bond having market discount. Solely for purposes of section 1276, the preceding sentence shall not apply if such other bond was issued on or before July 18, 1984 (the date of the enactment of section 1276) and if the bond issued pursuant to such plan of reorganization has the same term and the same interest rate as such other bond had. (iv) Treatment of certain transferred basis property For purposes of clause (i), if the adjusted basis of any bond in the hands of the taxpayer is determined by reference to the adjusted basis of such bond in the hands of a person who acquired such bond at its original issue, such bond shall be treated as acquired by the taxpayer at its original issue. (2) Market discount (A) In general The term market discount means the excess (if any) of (i) the stated redemption price of the bond at maturity, over (ii) the basis of such bond immediately after its acquisition by the taxpayer. (B) Coordination where bond has original issue discount In the case of any bond having original issue discount, for purposes of subparagraph (A), the stated redemption price of such bond at maturity shall be treated as equal to its revised issue price. (C) De minimis rule If the market discount is less than 1/4 of 1 percent of the stated redemption price of the bond at maturity multiplied by the number of complete years to maturity (after the taxpayer acquired the bond), then the market discount shall be considered to be zero. (3) Bond The term bond means any bond, debenture, note, certificate, or other evidence of indebtedness. (4) Revised issue price The term revised issue price means the sum of (A) the issue price of the bond, and (B) the aggregate amount of the original issue discount includible in the gross income of all holders for periods before the acquisition of the bond by the taxpayer (determined without

regard to section 1272 (a)(7) or (b)(4)) or, in the case of a tax-exempt obligation, the aggregate amount of the original issue discount which accrued in the manner provided by section 1272 (a) (determined without regard to paragraph (7) thereof) during periods before the acquisition of the bond by the taxpayer. (5) Original issue discount, etc. The terms original issue discount, stated redemption price at maturity, and issue price have the respective meanings given such terms by subpart A of this part. (b) Election to include market discount currently (1) In general If the taxpayer makes an election under this subsection (A) sections 1276 and 1277 shall not apply, and (B) market discount on any market discount bond shall be included in the gross income of the taxpayer for the taxable years to which it is attributable (as determined under the rules of subsection (b) of section 1276). Except for purposes of sections 103, 871 (a),,[1] 881, 1441, 1442, and 6049 (and such other provisions as may be specified in regulations), any amount included in gross income under subparagraph (B) shall be treated as interest for purposes of this title. (2) Scope of election An election under this subsection shall apply to all market discount bonds acquired by the taxpayer on or after the 1st day of the 1st taxable year to which such election applies. (3) Period to which election applies An election under this subsection shall apply to the taxable year for which it is made and for all subsequent taxable years, unless the taxpayer secures the consent of the Secretary to the revocation of such election. (4) Basis adjustment The basis of any bond in the hands of the taxpayer shall be increased by the amount included in gross income pursuant to this subsection. (c) Regulations The Secretary shall prescribe such regulations as may be necessary to carry out the purposes of this subpart, including regulations providing proper adjustments in the case of a bond the principal of which may be paid in 2 or more payments.

[1] So in original.

Subpart CDiscount on Short-Term Obligations


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1281. Current inclusion in income of discount on certain short-term obligations


1282. Deferral of interest deduction allocable to accrued discount 1283. Definitions and special rules

1281. Current inclusion in income of discount on certain short-term obligations


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(a) General rule

In the case of any short-term obligation to which this section applies, for purposes of this title (1) there shall be included in the gross income of the holder an amount equal to the sum of the daily portions of the acquisition discount for each day during the taxable year on which such holder held such obligation, and (2) any interest payable on the obligation (other than interest taken into account in determining the amount of the acquisition discount) shall be included in gross income as it accrues. (b) Short-term obligations to which section applies (1) In general This section shall apply to any short-term obligation which (A) is held by a taxpayer using an accrual method of accounting, (B) is held primarily for sale to customers in the ordinary course of the taxpayers trade or business, (C) is held by a bank (as defined in section 581), (D) is held by a regulated investment company or a common trust fund, (E) is identified by the taxpayer under section 1256 (e)(2) as being part of a hedging transaction, or (F) is a stripped bond or stripped coupon held by the person who stripped the bond or coupon (or by any other person whose basis is determined by reference to the basis in the hands of such person). (2) Treatment of obligations held by pass-thru entities (A) In general This section shall apply also to (i) any short-term obligation which is held by a pass-thru entity which is formed or availed of for purposes of avoiding the provisions of this section, and (ii) any short-term obligation which is acquired by a pass-thru entity (not described in clause (i)) during the required accrual period. (B) Required accrual period For purposes of subparagraph (A), the term required accrual period means the period (i) which begins with the first taxable year for which the ownership test of subparagraph (C) is met with respect to the pass-thru entity (or a predecessor), and (ii) which ends with the first taxable year after the taxable year referred to in clause (i) for which the ownership test of subparagraph (C) is not met and with respect to which the Secretary consents to the termination of the required accrual period. (C) Ownership test The ownership test of this subparagraph is met for any taxable year if, on at least 90 days during the taxable year, 20 percent or more of the value of the interests in the pass-thru entity are held by persons described in paragraph (1) or by other pass-thru entities to which subparagraph (A) applies. (D) Pass-thru entity The term pass-thru entity means any partnership, S corporation, trust, or other pass-thru entity. (c) Cross reference For special rules limiting the application of this section to original issue discount in the case of nongovernmental obligations, see section 1283(c).

1282. Deferral of interest deduction allocable to accrued discount


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(a) General rule Except as otherwise provided in this section, the net direct interest expense with respect to any short-term obligation shall be allowed as a deduction for the taxable year only to the extent such expense exceeds the sum of

(1) the daily portions of the acquisition discount for each day during the taxable year on which the taxpayer held such obligation, and (2) the amount of any interest payable on the obligation (other than interest taken into account in determining the amount of the acquisition discount) which accrues during the taxable year while the taxpayer held such obligation (and is not included in the gross income of the taxpayer for such taxable year by reason of the taxpayers method of accounting). (b) Section not to apply to obligations to which section 1281 applies (1) In general This section shall not apply to any short-term obligation to which section1281 applies. (2) Election to have section 1281 apply to all obligations (A) In general A taxpayer may make an election under this paragraph to have section 1281 apply to all short-term obligations acquired by the taxpayer on or after the 1st day of the 1st taxable year to which such election applies. (B) Period to which election applies An election under this paragraph shall apply to the taxable year for which it is made and for all subsequent taxable years, unless the taxpayer secures the consent of the Secretary to the revocation of such election. (c) Certain rules made applicable Rules similar to the rules of subsections (b) and (c) of section 1277 shall apply for purposes of this section. (d) Cross reference For special rules limiting the application of this section to original issue discount in the case of nongovernmental obligations, see section 1283(c).

1283. Definitions and special rules


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(a) Definitions For purposes of this subpart (1) Short-term obligation (A) In general Except as provided in subparagraph (B), the term short-term obligation means any bond, debenture, note, certificate, or other evidence of indebtedness which has a fixed maturity date not more than 1 year from the date of issue. (B) Exceptions for tax-exempt obligations The term short-term obligation shall not include any tax-exempt obligation (as defined in section 1275 (a)(3)). (2) Acquisition discount The term acquisition discount means the excess of (A) the stated redemption price at maturity (as defined in section1273), over (B) the taxpayers basis for the obligation. (b) Daily portion For purposes of this subpart (1) Ratable accrual Except as otherwise provided in this subsection, the daily portion of the acquisition discount is an amount equal to (A) the amount of such discount, divided by (B) the number of days after the day on which the taxpayer acquired the obligation and up to (and including) the day of its maturity. (2) Election of accrual on basis of constant interest rate (in lieu of ratable accrual) (A) In general At the election of the taxpayer with respect to any obligation, the daily portion of the acquisition discount for any day is the portion of the acquisition discount accruing on such day determined (under regulations prescribed by the Secretary) on the basis of

(i) the taxpayers yield to maturity based on the taxpayers cost of acquiring the obligation, and (ii) compounding daily. (B) Election irrevocable An election under subparagraph (A), once made with respect to any obligation, shall be irrevocable. (c) Special rules for nongovernmental obligations (1) In general In the case of any short-term obligation which is not a short-term Government obligation (as defined in section 1271 (a)(3)(B)) (A) sections 1281 and 1282 shall be applied by taking into account original issue discount in lieu of acquisition discount, and (B) appropriate adjustments shall be made in the application of subsection (b) of this section. (2) Election to have paragraph (1) not apply (A) In general A taxpayer may make an election under this paragraph to have paragraph (1) not apply to all obligations acquired by the taxpayer on or after the first day of the first taxable year to which such election applies. (B) Period to which election applies An election under this paragraph shall apply to the taxable year for which it is made and for all subsequent taxable years, unless the taxpayer secures the consent of the Secretary to the revocation of such election. (d) Other special rules (1) Basis adjustments The basis of any short-term obligation in the hands of the holder thereof shall be increased by the amount included in his gross income pursuant to section 1281. (2) Double inclusion in income not required Section 1281 shall not require the inclusion of any amount previously includible in gross income. (3) Coordination with other provisions Section 454 (b) and paragraphs (3) and (4) of section 1271 (a) shall not apply to any shortterm obligation to which section 1281 applies.

Subpart DMiscellaneous Provisions


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1286. Tax treatment of stripped bonds

1287. Denial of capital gain treatment for gains on certain obligations not in registered form 1288. Treatment of original issue discount on tax-exempt obligations

1286. Tax treatment of stripped bonds


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(a) Inclusion in income as if bond and coupons were original issue discount bonds If any person purchases after July 1, 1982, a stripped bond or a stripped coupon, then such bond or coupon while held by such purchaser (or by any other person whose basis is determined by reference to the basis in the hands of such purchaser) shall be treated for

purposes of this part as a bond originally issued on the purchase date and having an original issue discount equal to the excess (if any) of (1) the stated redemption price at maturity (or, in the case of coupon, the amount payable on the due date of such coupon), over (2) such bonds or coupons ratable share of the purchase price. For purposes of paragraph (2), ratable shares shall be determined on the basis of their respective fair market values on the date of purchase. (b) Tax treatment of person stripping bond For purposes of this subtitle, if any person strips 1 or more coupons from a bond and after July 1, 1982, disposes of the bond or such coupon (1) such person shall include in gross income an amount equal to the sum of (A) the interest accrued on such bond while held by such person and before the time such coupon or bond was disposed of (to the extent such interest has not theretofore been included in such persons gross income), and (B) the accrued market discount on such bond determined as of the time such coupon or bond was disposed of (to the extent such discount has not theretofore been included in such persons gross income), (2) the basis of the bond and coupons shall be increased by the amount included in gross income under paragraph (1), (3) the basis of the bond and coupons immediately before the disposition (as adjusted pursuant to paragraph (2)) shall be allocated among the items retained by such person and the items disposed of by such person on the basis of their respective fair market values, and (4) for purposes of subsection (a), such person shall be treated as having purchased on the date of such disposition each such item which he retains for an amount equal to the basis allocated to such item under paragraph (3). A rule similar to the rule of paragraph (4) shall apply in the case of any person whose basis in any bond or coupon is determined by reference to the basis of the person described in the preceding sentence. (c) Retention of existing law for stripped bonds purchased before July 2, 1982 If a bond issued at any time with interest coupons (1) is purchased after August 16, 1954, and before January 1, 1958, and the purchaser does not receive all the coupons which first become payable more than 12 months after the date of the purchase, or (2) is purchased after December 31, 1957, and before July 2, 1982, and the purchaser does not receive all the coupons which first become payable after the date of the purchase, then the gain on the sale or other disposition of such bond by such purchaser (or by a person whose basis is determined by reference to the basis in the hands of such purchaser) shall be considered as ordinary income to the extent that the fair market value (determined as of the time of the purchase) of the bond with coupons attached exceeds the purchase price. If this subsection and section 1271 (a)(2)(A) apply with respect to gain realized on the sale or exchange of any evidence of indebtedness, then section 1271 (a)(2)(A) shall apply with respect to that part of the gain to which this subsection does not apply. (d) Special rules for tax-exempt obligations (1) In general In the case of any tax-exempt obligation (as defined in section 1275 (a)(3)) from which 1 or more coupons have been stripped (A) the amount of the original issue discount determined under subsection (a) with respect to any stripped bond or stripped coupon (i) shall be treated as original issue discount on a tax-exempt obligation to the extent such discount does not exceed the tax-exempt portion of such discount, and (ii) shall be treated as original issue discount on an obligation which is not a tax-exempt obligation to the extent such discount exceeds the tax-exempt portion of such discount, (B) subsection (b)(1)(A) shall not apply, and (C) subsection (b)(2) shall be applied by increasing the basis of the bond or coupon by the sum of (i) the interest accrued but not paid before such bond or coupon was disposed of (and not previously reflected in basis), plus (ii) the amount included in gross income under subsection (b)(1)(B).

(2) Tax-exempt portion For purposes of paragraph (1), the tax-exempt portion of the original issue discount determined under subsection (a) is the excess of (A) the amount referred to in subsection (a)(1), over (B) an issue price which would produce a yield to maturity as of the purchase date equal to the lower of (i) the coupon rate of interest on the obligation from which the coupons were separated, or (ii) the yield to maturity (on the basis of the purchase price) of the stripped obligation or coupon. The purchaser of any stripped obligation or coupon may elect to apply clause (i) by substituting original yield to maturity of for coupon rate of interest on. (e) Definitions and special rules For purposes of this section (1) Bond The term bond means a bond, debenture, note, or certificate or other evidence of indebtedness. (2) Stripped bond The term stripped bond means a bond issued at any time with interest coupons where there is a separation in ownership between the bond and any coupon which has not yet become payable. (3) Stripped coupon The term stripped coupon means any coupon relating to a stripped bond. (4) Stated redemption price at maturity The term stated redemption price at maturity has the meaning given such term by section 1273 (a)(2). (5) Coupon The term coupon includes any right to receive interest on a bond (whether or not evidenced by a coupon). This paragraph shall apply for purposes of subsection (c) only in the case of purchases after July 1, 1982. (6) Purchase The term purchase has the meaning given such term by section 1272(d)(1). (f) Treatment of stripped interests in bond and preferred stock funds, etc. In the case of an account or entity substantially all of the assets of which consist of bonds, preferred stock, or a combination thereof, the Secretary may by regulations provide that rules similar to the rules of this section and 305(e),[1] as appropriate, shall apply to interests in such account or entity to which (but for this subsection) this section or section 305 (e), as the case may be, would not apply. (g) Regulation authority The Secretary may prescribe regulations providing that where, by reason of varying rates of interest, put or call options, or other circumstances, the tax treatment under this section does not accurately reflect the income of the holder of a stripped coupon or stripped bond, or of the person disposing of such bond or coupon, as the case may be, for any period, such treatment shall be modified to require that the proper amount of income be included for such period.

[1] So in original. Probably should be section 305 (e),.

1287. Denial of capital gain treatment for gains on certain obligations not in registered form
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(a) In general

If any registration-required obligation is not in registered form, any gain on the sale or other disposition of such obligation shall be treated as ordinary income (unless the issuance of such obligation was subject to tax under section 4701). (b) Definitions For purposes of subsection (a) (1) Registration-required obligation The term registration-required obligation has the meaning given to such term by section 163 (f)(2) except that clause (iv) of subparagraph (A), and subparagraph (B), of such section shall not apply. (2) Registered form The term registered form has the same meaning as when used in section 163 (f).

1288. Treatment of original issue discount on tax-exempt obligations


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(a) General rule Original issue discount on any tax-exempt obligation shall be treated as accruing (1) for purposes of section 163, in the manner provided by section 1272(a) (determined without regard to paragraph (7) thereof), and (2) for purposes of determining the adjusted basis of the holder, in the manner provided by section 1272 (a) (determined with regard to paragraph (7) thereof). (b) Definitions and special rules For purposes of this section (1) Original issue discount The term original issue discount has the meaning given to such term by section 1273 (a) without regard to paragraph (3) thereof. In applying section 483 or 1274, under regulations prescribed by the Secretary, appropriate adjustments shall be made to the applicable Federal rate to take into account the tax exemption for interest on the obligation. (2) Tax-exempt obligation The term tax-exempt obligation has the meaning given to such term by section 1275 (a) (3). (3) Short-term obligations In applying this section to obligations with maturity of 1 year or less, rules similar to the rules of section 1283 (b) shall apply.

PART VITREATMENT OF CERTAIN PASSIVE FOREIGN INVESTMENT COMPANIES


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Subpart AInterest on Tax Deferral ( 1291) Subpart BTreatment of Qualified Electing Funds ( 12931295) Subpart CElection of Mark to Market for Marketable Stock ( 1296) Subpart DGeneral Provisions ( 12971298)

Subpart AInterest on Tax Deferral


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1291. Interest on tax deferral

1291. Interest on tax deferral


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(a) Treatment of distributions and stock dispositions (1) Distributions If a United States person receives an excess distribution in respect of stock in a passive foreign investment company, then (A) the amount of the excess distribution shall be allocated ratably to each day in the taxpayers holding period for the stock, (B) with respect to such excess distribution, the taxpayers gross income for the current year shall include (as ordinary income) only the amounts allocated under subparagraph (A) to (i) the current year, or (ii) any period in the taxpayers holding period before the 1st day of the 1st taxable year of the company which begins after December 31, 1986, and for which it was a passive foreign investment company, and (C) the tax imposed by this chapter for the current year shall be increased by the deferred tax amount (determined under subsection (c)). (2) Dispositions If the taxpayer disposes of stock in a passive foreign investment company, then the rules of paragraph (1) shall apply to any gain recognized on such disposition in the same manner as if such gain were an excess distribution. (3) Definitions For purposes of this section (A) Holding period The taxpayers holding period shall be determined under section1223; except that (i) for purposes of applying this section to an excess distribution, such holding period shall be treated as ending on the date of such distribution, and (ii) if section 1296 applied to such stock with respect to the taxpayer for any prior taxable year, such holding period shall be treated as beginning on the first day of the first taxable year beginning after the last taxable year for which section 1296 so applied. (B) Current year The term current year means the taxable year in which the excess distribution or disposition occurs. (b) Excess distribution (1) In general For purposes of this section, the term excess distribution means any distribution in respect of stock received during any taxable year to the extent such distribution does not exceed its ratable portion of the total excess distribution (if any) for such taxable year. (2) Total excess distribution For purposes of this subsection (A) In general The term total excess distribution means the excess (if any) of (i) the amount of the distributions in respect of the stock received by the taxpayer during the taxable year, over

(ii) 125 percent of the average amount received in respect of such stock by the taxpayer during the 3 preceding taxable years (or, if shorter, the portion of the taxpayers holding period before the taxable year). For purposes of clause (ii), any excess distribution received during such 3-year period shall be taken into account only to the extent it was included in gross income under subsection (a) (1)(B). (B) No excess for 1st year The total excess distributions with respect to any stock shall be zero for the taxable year in which the taxpayers holding period in such stock begins. (3) Adjustments Under regulations prescribed by the Secretary (A) determinations under this subsection shall be made on a share-by-share basis, except that shares with the same holding period may be aggregated, (B) proper adjustments shall be made for stock splits and stock dividends, (C) if the taxpayer does not hold the stock during the entire taxable year, distributions received during such year shall be annualized, (D) if the taxpayers holding period includes periods during which the stock was held by another person, distributions received by such other person shall be taken into account as if received by the taxpayer, (E) if the distributions are received in a foreign currency, determinations under this subsection shall be made in such currency and the amount of any excess distribution determined in such currency shall be translated into dollars, (F) proper adjustment shall be made for amounts not includible in gross income by reason of section 959 (a) or 1293 (c), and (G) if a charitable deduction was allowable under section 642 (c) to a trust for any distribution of its income, proper adjustments shall be made for the deduction so allowable to the extent allocable to distributions or gain in respect of stock in a passive foreign investment company. (c) Deferred tax amount For purposes of this section (1) In general The term deferred tax amount means, with respect to any distribution or disposition to which subsection (a) applies, an amount equal to the sum of (A) the aggregate increases in taxes described in paragraph (2), plus (B) the aggregate amount of interest (determined in the manner provided under paragraph (3)) on such increases in tax. Any increase in the tax imposed by this chapter for the current year under subsection (a) to the extent attributable to the amount referred to in subparagraph (B) shall be treated as interest paid under section 6601 on the due date for the current year. (2) Aggregate increases in taxes For purposes of paragraph (1)(A), the aggregate increases in taxes shall be determined by multiplying each amount allocated under subsection (a)(1)(A) to any taxable year (other than any taxable year referred to in subsection (a)(1)(B)) by the highest rate of tax in effect for such taxable year under section 1 or 11, whichever applies. (3) Computation of interest (A) In general The amount of interest referred to in paragraph (1)(B) on any increase determined under paragraph (2) for any taxable year shall be determined for the period (i) beginning on the due date for such taxable year, and (ii) ending on the due date for the taxable year with or within which the distribution or disposition occurs, by using the rates and method applicable under section 6621 for underpayments of tax for such period. (B) Due date For purposes of this subsection, the term due date means the date prescribed by law (determined without regard to extensions) for filing the return of the tax imposed by this chapter for the taxable year. (d) Coordination with subparts B and C

(1) In general This section shall not apply with respect to any distribution paid by a passive foreign investment company, or any disposition of stock in a passive foreign investment company, if such company is a qualified electing fund with respect to the taxpayer for each of its taxable years (A) which begins after December 31, 1986, and for which such company is a passive foreign investment company, and (B) which includes any portion of the taxpayers holding period. Except as provided in section 1296 (j), this section also shall not apply if an election under section 1296 (k) is in effect for the taxpayers taxable year. In the case of stock which is marked to market under section 475 or any other provision of this chapter, this section shall not apply, except that rules similar to the rules of section 1296 (j) shall apply. (2) Election to recognize gain where company becomes qualified electing fund (A) In general If (i) a passive foreign investment company becomes a qualified electing fund with respect to the taxpayer for a taxable year which begins after December 31, 1986, (ii) the taxpayer holds stock in such company on the first day of such taxable year, and (iii) the taxpayer establishes to the satisfaction of the Secretary the fair market value of such stock on such first day, the taxpayer may elect to recognize gain as if he sold such stock on such first day for such fair market value. (B) Additional election for shareholder of controlled foreign corporations (i) In general If (I) a passive foreign investment company becomes a qualified electing fund with respect to the taxpayer for a taxable year which begins after December 31, 1986, (II) the taxpayer holds stock in such company on the first day of such taxable year, and (III) such company is a controlled foreign corporation (as defined in section 957 (a)), the taxpayer may elect to include in gross income as a dividend received on such first day an amount equal to the portion of the post-1986 earnings and profits of such company attributable (under regulations prescribed by the Secretary) to the stock in such company held by the taxpayer on such first day. The amount treated as a dividend under the preceding sentence shall be treated as an excess distribution and shall be allocated under subsection (a)(1)(A) only to days during periods taken into account in determining the post-1986 earnings and profits so attributable. (ii) Post-1986 earnings and profits For purposes of clause (i), the term post-1986 earnings and profits means earnings and profits which were accumulated in taxable years of such company beginning after December 31, 1986, and during the period or periods the stock was held by the taxpayer while the company was a passive foreign investment company. (iii) Coordination with section 959 (e) For purposes of section959 (e), any amount included in gross income under this subparagraph shall be treated as included in gross income under section 1248 (a). (C) Adjustments In the case of any stock to which subparagraph (A) or (B) applies (i) the adjusted basis of such stock shall be increased by the gain recognized under subparagraph (A) or the amount treated as a dividend under subparagraph (B), as the case may be, and (ii) the taxpayers holding period in such stock shall be treated as beginning on the first day referred to in such subparagraph. (e) Certain basis, etc., rules made applicable Except to the extent inconsistent with the regulations prescribed under subsection (f), rules similar to the rules of subsections (c), (d), and (f) of section 1246 (as in effect on the day before the date of the enactment of the American Jobs Creation Act of 2004) shall apply for purposes of this section. (f) Recognition of gain To the extent provided in regulations, in the case of any transfer of stock in a passive foreign investment company where (but for this subsection) there is not full recognition of gain, the excess (if any) of

(1) the fair market value of such stock, over (2) its adjusted basis, shall be treated as gain from the sale or exchange of such stock and shall be recognized notwithstanding any provision of law. Proper adjustment shall be made to the basis of any such stock for gain recognized under the preceding sentence. (g) Coordination with foreign tax credit rules (1) In general If there are creditable foreign taxes with respect to any distribution in respect of stock in a passive foreign investment company (A) the amount of such distribution shall be determined for purposes of this section with regard to section 78, (B) the excess distribution taxes shall be allocated ratably to each day in the taxpayers holding period for the stock, and (C) to the extent (i) that such excess distribution taxes are allocated to a taxable year referred to in subsection (a)(1)(B), such taxes shall be taken into account under section 901 for the current year, and (ii) that such excess distribution taxes are allocated to any other taxable year, such taxes shall reduce (subject to the principles of section 904 (d) and not below zero) the increase in tax determined under subsection (c)(2) for such taxable year by reason of such distribution (but such taxes shall not be taken into account under section 901). (2) Definitions For purposes of this subsection (A) Creditable foreign taxes The term creditable foreign taxes means, with respect to any distribution (i) any foreign taxes deemed paid under section 902 with respect to such distribution, and (ii) any withholding tax imposed with respect to such distribution, but only if the taxpayer chooses the benefits of section 901 and such taxes are creditable under section 901 (determined without regard to paragraph (1)(C)(ii)). (B) Excess distribution taxes The term excess distribution taxes means, with respect to any distribution, the portion of the creditable foreign taxes with respect to such distribution which is attributable (on a pro rata basis) to the portion of such distribution which is an excess distribution. (C) Section 1248 gain The rules of this subsection also shall apply in the case of any gain which but for this section would be includible in gross income as a dividend under section 1248.

Subpart BTreatment of Qualified Electing Funds


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1293. Current taxation of income from qualified electing funds 1294. Election to extend time for payment of tax on undistributed earnings 1295. Qualified electing fund

1293. Current taxation of income from qualified electing funds

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(a) Inclusion (1) In general Every United States person who owns (or is treated under section 1298(a) as owning) stock of a qualified electing fund at any time during the taxable year of such fund shall include in gross income (A) as ordinary income, such shareholders pro rata share of the ordinary earnings of such fund for such year, and (B) as long-term capital gain, such shareholders pro rata share of the net capital gain of such fund for such year. (2) Year of inclusion The inclusion under paragraph (1) shall be for the taxable year of the shareholder in which or with which the taxable year of the fund ends. (b) Pro rata share The pro rata share referred to in subsection (a) in the case of any shareholder is the amount which would have been distributed with respect to the shareholders stock if, on each day during the taxable year of the fund, the fund had distributed to each shareholder a pro rata share of that days ratable share of the funds ordinary earnings and net capital gain for such year. To the extent provided in regulations, if the fund establishes to the satisfaction of the Secretary that it uses a shorter period than the taxable year to determine shareholders interests in the earnings of such fund, pro rata shares may be determined by using such shorter period. (c) Previously taxed amounts distributed tax free If the taxpayer establishes to the satisfaction of the Secretary that any amount distributed by a passive foreign investment company is paid out of earnings and profits of the company which were included under subsection (a) in the income of any United States person, such amount shall be treated, for purposes of this chapter, as a distribution which is not a dividend; except that such distribution shall immediately reduce earnings and profits. If the passive foreign investment company is a controlled foreign corporation (as defined in section 957 (a)), the preceding sentence shall not apply to any United States shareholder (as defined in section 951 (b)) in such corporation, and, in applying section 959 to any such shareholder, any inclusion under this section shall be treated as an inclusion under section 951 (a)(1)(A). (d) Basis adjustments The basis of the taxpayers stock in a passive foreign investment company shall be (1) increased by any amount which is included in the income of the taxpayer under subsection (a) with respect to such stock, and (2) decreased by any amount distributed with respect to such stock which is not includible in the income of the taxpayer by reason of subsection (c). A similar rule shall apply also in the case of any property if by reason of holding such property the taxpayer is treated under section 1298 (a) as owning stock in a qualified electing fund. (e) Ordinary earnings For purposes of this section (1) Ordinary earnings The term ordinary earnings means the excess of the earnings and profits of the qualified electing fund for the taxable year over its net capital gain for such taxable year. (2) Limitation on net capital gain A qualified electing funds net capital gain for any taxable year shall not exceed its earnings and profits for such taxable year. (3) Determination of earnings and profits The earnings and profits of any qualified electing fund shall be determined without regard to paragraphs (4), (5), and (6) of section 312(n). Under regulations, the preceding sentence shall not apply to the extent it would increase earnings and profits by an amount which was previously distributed by the qualified electing fund. (f) Foreign tax credit allowed in the case of 10-percent corporate shareholder For purposes of section 960

(1) any amount included in the gross income under subsection (a) shall be treated as if it were included under section 951 (a), and (2) any amount excluded from gross income under subsection (c) shall be treated in the same manner as amounts excluded from gross income under section 959. (g) Other special rules (1) Exception for certain income For purposes of determining the amount included in the gross income of any person under this section, the ordinary earnings and net capital gain of a qualified electing fund shall not include any item of income received by such fund if (A) such fund is a controlled foreign corporation (as defined in section 957 (a)) and such person is a United States shareholder (as defined in section 951 (b)) in such fund, and (B) such person establishes to the satisfaction of the Secretary that (i) such income was subject to an effective rate of income tax imposed by a foreign country greater than 90 percent of the maximum rate of tax specified in section 11, or (ii) such income is (I) from sources within the United States, (II) effectively connected with the conduct by the qualified electing fund of a trade or business in the United States, and (III) not exempt from taxation (or subject to a reduced rate of tax) pursuant to a treaty obligation of the United States. (2) Prevention of double inclusion The Secretary shall prescribe such adjustment to the provisions of this section as may be necessary to prevent the same item of income of a qualified electing fund from being included in the gross income of a United States person more than once.

1294. Election to extend time for payment of tax on undistributed earnings


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(a) Extension allowed by election (1) In general At the election of the taxpayer, the time for payment of any undistributed PFIC earnings tax liability of the taxpayer for the taxable year shall be extended to the extent and subject to the limitations provided in this section. (2) Election not permitted where amounts otherwise includible under section 951 The taxpayer may not make an election under paragraph (1) with respect to the undistributed PFIC earnings tax liability attributable to a qualified electing fund for the taxable year if any amount is includible in the gross income of the taxpayer under section 951 with respect to such fund for such taxable year. (b) Definitions For purposes of this section (1) Undistributed PFIC earnings tax liability The term undistributed PFIC earnings tax liability means, in the case of any taxpayer, the excess of (A) the tax imposed by this chapter for the taxable year, over (B) the tax which would be imposed by this chapter for such year without regard to the inclusion in gross income under section 1293 of the undistributed earnings of a qualified electing fund. (2) Undistributed earnings The term undistributed earnings means, with respect to any qualified electing fund, the excess (if any) of (A) the amount includible in gross income by reason of section 1293(a) for the taxable year, over

(B) the amount not includible in gross income by reason of section1293 (c) for such taxable year. (c) Termination of extension (1) Distributions (A) In general If a distribution is not includible in gross income for the taxable year by reason of section 1293 (c), then the extension under subsection (a) for payment of the undistributed PFIC earnings tax liability with respect to the earnings to which such distribution is attributable shall expire on the last date prescribed by law (determined without regard to extensions) for filing the return of tax for such taxable year. (B) Ordering rule For purposes of subparagraph (A), a distribution shall be treated as made from the most recently accumulated earnings and profits. (2) Transfers, etc. If (A) stock in a passive foreign investment company is transferred during the taxable year, or (B) a passive foreign investment company ceases to be a qualified electing fund, all extensions under subsection (a) for payment of undistributed PFIC earnings tax liability attributable to such stock (or, in the case of such a cessation, attributable to any stock in such company) which had not expired before the date of such transfer or cessation shall expire on the last date prescribed by law (determined without regard to extensions) for filing the return of tax for the taxable year in which such transfer or cessation occurs. To the extent provided in regulations, the preceding sentence shall not apply in the case of a transfer in a transaction with respect to which gain or loss is not recognized (in whole or in part), and the transferee in such transaction shall succeed to the treatment under this section of the transferor. (3) Jeopardy If the Secretary believes that collection of an amount to which an extension under this section relates is in jeopardy, the Secretary shall immediately terminate such extension with respect to such amount, and notice and demand shall be made by him for payment of such amount. (d) Election The election under subsection (a) shall be made not later than the time prescribed by law (including extensions) for filing the return of tax imposed by this chapter for the taxable year. (e) Authority to require bond Section 6165 shall apply to any extension under this section as though the Secretary were extending the time for payment of the tax. (f) Treatment of loans to shareholder For purposes of this section and section 1293, any loan by a qualified electing fund (directly or indirectly) to a shareholder of such fund shall be treated as a distribution to such shareholder. (g) Cross reference For provisions providing for interest for the period of the extension under this section, see section 6601.

1295. Qualified electing fund


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(a) General rule For purposes of this part, any passive foreign investment company shall be treated as a qualified electing fund with respect to the taxpayer if (1) an election by the taxpayer under subsection (b) applies to such company for the taxable year, and (2) such company complies with such requirements as the Secretary may prescribe for purposes of (A) determining the ordinary earnings and net capital gain of such company, and (B) otherwise carrying out the purposes of this subpart.

(b) Election (1) In general A taxpayer may make an election under this subsection with respect to any passive foreign investment company for any taxable year of the taxpayer. Such an election, once made with respect to any company, shall apply to all subsequent taxable years of the taxpayer with respect to such company unless revoked by the taxpayer with the consent of the Secretary. (2) When made An election under this subsection may be made for any taxable year at any time on or before the due date (determined with regard to extensions) for filing the return of the tax imposed by this chapter for such taxable year. To the extent provided in regulations, such an election may be made later than as required in the preceding sentence where the taxpayer fails to make a timely election because the taxpayer reasonably believed that the company was not a passive foreign investment company.

Subpart CElection of Mark to Market for Marketable Stock


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1296. Election of mark to market for marketable stock

1296. Election of mark to market for marketable stock


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(a) General rule In the case of marketable stock in a passive foreign investment company which is owned (or treated under subsection (g) as owned) by a United States person at the close of any taxable year of such person, at the election of such person (1) If the fair market value of such stock as of the close of such taxable year exceeds its adjusted basis, such United States person shall include in gross income for such taxable year an amount equal to the amount of such excess. (2) If the adjusted basis of such stock exceeds the fair market value of such stock as of the close of such taxable year, such United States person shall be allowed a deduction for such taxable year equal to the lesser of (A) the amount of such excess, or (B) the unreversed inclusions with respect to such stock. (b) Basis adjustments (1) In general The adjusted basis of stock in a passive foreign investment company (A) shall be increased by the amount included in the gross income of the United States person under subsection (a)(1) with respect to such stock, and (B) shall be decreased by the amount allowed as a deduction to the United States person under subsection (a)(2) with respect to such stock. (2) Special rule for stock constructively owned In the case of stock in a passive foreign investment company which the United States person is treated as owning under subsection (g)

(A) the adjustments under paragraph (1) shall apply to such stock in the hands of the person actually holding such stock but only for purposes of determining the subsequent treatment under this chapter of the United States person with respect to such stock, and (B) similar adjustments shall be made to the adjusted basis of the property by reason of which the United States person is treated as owning such stock. (c) Character and source rules (1) Ordinary treatment (A) Gain Any amount included in gross income under subsection (a)(1), and any gain on the sale or other disposition of marketable stock in a passive foreign investment company (with respect to which an election under this section is in effect), shall be treated as ordinary income. (B) Loss Any (i) amount allowed as a deduction under subsection (a)(2), and (ii) loss on the sale or other disposition of marketable stock in a passive foreign investment company (with respect to which an election under this section is in effect) to the extent that the amount of such loss does not exceed the unreversed inclusions with respect to such stock, shall be treated as an ordinary loss. The amount so treated shall be treated as a deduction allowable in computing adjusted gross income. (2) Source The source of any amount included in gross income under subsection (a)(1) (or allowed as a deduction under subsection (a)(2)) shall be determined in the same manner as if such amount were gain or loss (as the case may be) from the sale of stock in the passive foreign investment company. (d) Unreversed inclusions For purposes of this section, the term unreversed inclusions means, with respect to any stock in a passive foreign investment company, the excess (if any) of (1) the amount included in gross income of the taxpayer under subsection (a)(1) with respect to such stock for prior taxable years, over (2) the amount allowed as a deduction under subsection (a)(2) with respect to such stock for prior taxable years. The amount referred to in paragraph (1) shall include any amount which would have been included in gross income under subsection (a)(1) with respect to such stock for any prior taxable year but for section 1291. In the case of a regulated investment company which elected to mark to market the stock held by such company as of the last day of the taxable year preceding such companys first taxable year for which such company elects the application of this section, the amount referred to in paragraph (1) shall include amounts included in gross income under such mark to market with respect to such stock for prior taxable years. (e) Marketable stock For purposes of this section (1) In general The term marketable stock means (A) any stock which is regularly traded on (i) a national securities exchange which is registered with the Securities and Exchange Commission or the national market system established pursuant to section 11A of the Securities and Exchange Act of 1934, or (ii) any exchange or other market which the Secretary determines has rules adequate to carry out the purposes of this part, (B) to the extent provided in regulations, stock in any foreign corporation which is comparable to a regulated investment company and which offers for sale or has outstanding any stock of which it is the issuer and which is redeemable at its net asset value, and (C) to the extent provided in regulations, any option on stock described in subparagraph (A) or (B). (2) Special rule for regulated investment companies In the case of any regulated investment company which is offering for sale or has outstanding any stock of which it is the issuer and which is redeemable at its net asset value,

all stock in a passive foreign investment company which it owns directly or indirectly shall be treated as marketable stock for purposes of this section. Except as provided in regulations, similar treatment as marketable stock shall apply in the case of any other regulated investment company which publishes net asset valuations at least annually. (f) Treatment of controlled foreign corporations which are shareholders in passive foreign investment companies In the case of a foreign corporation which is a controlled foreign corporation and which owns (or is treated under subsection (g) as owning) stock in a passive foreign investment company (1) this section (other than subsection (c)(2)) shall apply to such foreign corporation in the same manner as if such corporation were a United States person, and (2) for purposes of subpart F of part III of subchapter N (A) any amount included in gross income under subsection (a)(1) shall be treated as foreign personal holding company income described in section 954 (c)(1)(A), and (B) any amount allowed as a deduction under subsection (a)(2) shall be treated as a deduction allocable to foreign personal holding company income so described. (g) Stock owned through certain foreign entities Except as provided in regulations (1) In general For purposes of this section, stock owned, directly or indirectly, by or for a foreign partnership or foreign trust or foreign estate shall be considered as being owned proportionately by its partners or beneficiaries. Stock considered to be owned by a person by reason of the application of the preceding sentence shall, for purposes of applying such sentence, be treated as actually owned by such person. (2) Treatment of certain dispositions In any case in which a United States person is treated as owning stock in a passive foreign investment company by reason of paragraph (1) (A) any disposition by the United States person or by any other person which results in the United States person being treated as no longer owning such stock, and (B) any disposition by the person owning such stock, shall be treated as a disposition by the United States person of the stock in the passive foreign investment company. (h) Coordination with section 851 (b) For purposes of section 851 (b)(2), any amount included in gross income under subsection (a) shall be treated as a dividend. [(i) Repealed. Pub. L. 10716, 542(e)(5)(C), June 7, 2001, 115 Stat. 85] (j) Coordination with section 1291 for first year of election (1) Taxpayers other than regulated investment companies (A) In general If the taxpayer elects the application of this section with respect to any marketable stock in a corporation after the beginning of the taxpayers holding period in such stock, and if the requirements of subparagraph (B) are not satisfied, section 1291 shall apply to (i) any distributions with respect to, or disposition of, such stock in the first taxable year of the taxpayer for which such election is made, and (ii) any amount which, but for section 1291, would have been included in gross income under subsection (a) with respect to such stock for such taxable year in the same manner as if such amount were gain on the disposition of such stock. (B) Requirements The requirements of this subparagraph are met if, with respect to each of such corporations taxable years for which such corporation was a passive foreign investment company and which begin after December 31, 1986, and included any portion of the taxpayers holding period in such stock, such corporation was treated as a qualified electing fund under this part with respect to the taxpayer. (2) Special rules for regulated investment companies (A) In general If a regulated investment company elects the application of this section with respect to any marketable stock in a corporation after the beginning of the taxpayers holding period in such

stock, then, with respect to such companys first taxable year for which such company elects the application of this section with respect to such stock (i) section 1291 shall not apply to such stock with respect to any distribution or disposition during, or amount included in gross income under this section for, such first taxable year, but (ii) such regulated investment companys tax under this chapter for such first taxable year shall be increased by the aggregate amount of interest which would have been determined under section 1291 (c)(3) if section 1291 were applied without regard to this subparagraph. Clause (ii) shall not apply if for the preceding taxable year the company elected to mark to market the stock held by such company as of the last day of such preceding taxable year. (B) Disallowance of deduction No deduction shall be allowed to any regulated investment company for the increase in tax under subparagraph (A)(ii). (k) Election This section shall apply to marketable stock in a passive foreign investment company which is held by a United States person only if such person elects to apply this section with respect to such stock. Such an election shall apply to the taxable year for which made and all subsequent taxable years unless (1) such stock ceases to be marketable stock, or (2) the Secretary consents to the revocation of such election. (l) Transition rule for individuals becoming subject to United States tax If any individual becomes a United States person in a taxable year beginning after December 31, 1997, solely for purposes of this section, the adjusted basis (before adjustments under subsection (b)) of any marketable stock in a passive foreign investment company owned by such individual on the first day of such taxable year shall be treated as being the greater of its fair market value on such first day or its adjusted basis on such first day.

Subpart DGeneral Provisions


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1297. Passive foreign investment company 1298. Special rules

1297. Passive foreign investment company


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(a) In general For purposes of this part, except as otherwise provided in this subpart, the term passive foreign investment company means any foreign corporation if (1) 75 percent or more of the gross income of such corporation for the taxable year is passive income, or (2) the average percentage of assets (as determined in accordance with subsection (e)) held by such corporation during the taxable year which produce passive income or which are held for the production of passive income is at least 50 percent. (b) Passive income For purposes of this section (1) In general Except as provided in paragraph (2), the term passive income means any income which is of a kind which would be foreign personal holding company income as defined in section 954 (c).

(2) Exceptions Except as provided in regulations, the term passive income does not include any income (A) derived in the active conduct of a banking business by an institution licensed to do business as a bank in the United States (or, to the extent provided in regulations, by any other corporation), (B) derived in the active conduct of an insurance business by a corporation which is predominantly engaged in an insurance business and which would be subject to tax under subchapter L if it were a domestic corporation, (C) which is interest, a dividend, or a rent or royalty, which is received or accrued from a related person (within the meaning of section 954 (d)(3)) to the extent such amount is properly allocable (under regulations prescribed by the Secretary) to income of such related person which is not passive income, or (D) which is export trade income of an export trade corporation (as defined in section 971). For purposes of subparagraph (C), the term related person has the meaning given such term by section 954 (d)(3) determined by substituting foreign corporation for controlled foreign corporation each place it appears in section 954 (d)(3). (c) Look-thru in the case of 25-percent owned corporations If a foreign corporation owns (directly or indirectly) at least 25 percent (by value) of the stock of another corporation, for purposes of determining whether such foreign corporation is a passive foreign investment company, such foreign corporation shall be treated as if it (1) held its proportionate share of the assets of such other corporation, and (2) received directly its proportionate share of the income of such other corporation. (d) Exception for United States shareholders of controlled foreign corporations (1) In general For purposes of this part, a corporation shall not be treated with respect to a shareholder as a passive foreign investment company during the qualified portion of such shareholders holding period with respect to stock in such corporation. (2) Qualified portion For purposes of this subsection, the term qualified portion means the portion of the shareholders holding period (A) which is after December 31, 1997, and (B) during which the shareholder is a United States shareholder (as defined in section 951(b)) of the corporation and the corporation is a controlled foreign corporation. (3) New holding period if qualified portion ends (A) In general Except as provided in subparagraph (B), if the qualified portion of a shareholders holding period with respect to any stock ends after December 31, 1997, solely for purposes of this part, the shareholders holding period with respect to such stock shall be treated as beginning as of the first day following such period. (B) Exception Subparagraph (A) shall not apply if such stock was, with respect to such shareholder, stock in a passive foreign investment company at any time before the qualified portion of the shareholders holding period with respect to such stock and no election under section 1298(b) (1) is made. (4) Treatment of holders of options Paragraph (1) shall not apply to stock treated as owned by a person by reason of section 1298 (a)(4) (relating to the treatment of a person that has an option to acquire stock as owning such stock) unless such person establishes that such stock is owned (within the meaning of section 958(a)) by a United States shareholder (as defined in section 951 (b)) who is not exempt from tax under this chapter. (e) Methods for measuring assets (1) Determination using value The determination under subsection (a)(2) shall be made on the basis of the value of the assets of a foreign corporation if (A) such corporation is a publicly traded corporation for the taxable year, or (B) paragraph (2) does not apply to such corporation for the taxable year. (2) Determination using adjusted bases

The determination under subsection (a)(2) shall be based on the adjusted bases (as determined for the purposes of computing earnings and profits) of the assets of a foreign corporation if such corporation is not described in paragraph (1)(A) and such corporation (A) is a controlled foreign corporation, or (B) elects the application of this paragraph. An election under subparagraph (B), once made, may be revoked only with the consent of the Secretary. (3) Publicly traded corporation For purposes of this subsection, a foreign corporation shall be treated as a publicly traded corporation if the stock in the corporation is regularly traded on (A) a national securities exchange which is registered with the Securities and Exchange Commission or the national market system established pursuant to section 11A of the Securities and Exchange Act of 1934, or (B) any exchange or other market which the Secretary determines has rules adequate to carry out the purposes of this subsection.

1298. Special rules


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(a) Attribution of ownership For purposes of this part (1) Attribution to United States persons This subsection (A) shall apply to the extent that the effect is to treat stock of a passive foreign investment company as owned by a United States person, and (B) except to the extent provided in regulations, shall not apply to treat stock owned (or treated as owned under this subsection) by a United States person as owned by any other person. (2) Corporations (A) In general If 50 percent or more in value of the stock of a corporation is owned, directly or indirectly, by or for any person, such person shall be considered as owning the stock owned directly or indirectly by or for such corporation in that proportion which the value of the stock which such person so owns bears to the value of all stock in the corporation. (B) 50-percent limitation not to apply to PFIC For purposes of determining whether a shareholder of a passive foreign investment company is treated as owning stock owned directly or indirectly by or for such company, subparagraph (A) shall be applied without regard to the 50-percent limitation contained therein. Section 1297 (d) shall not apply in determining whether a corporation is a passive foreign investment company for purposes of this subparagraph. (3) Partnerships, etc. Stock owned, directly or indirectly, by or for a partnership, estate, or trust shall be considered as being owned proportionately by its partners or beneficiaries. (4) Options To the extent provided in regulations, if any person has an option to acquire stock, such stock shall be considered as owned by such person. For purposes of this paragraph, an option to acquire such an option, and each one of a series of such options, shall be considered as an option to acquire such stock. (5) Successive application Stock considered to be owned by a person by reason of the application of paragraph (2), (3), or (4) shall, for purposes of applying such paragraphs, be considered as actually owned by such person. (b) Other special rules For purposes of this part (1) Time for determination

Stock held by a taxpayer shall be treated as stock in a passive foreign investment company if, at any time during the holding period of the taxpayer with respect to such stock, such corporation (or any predecessor) was a passive foreign investment company which was not a qualified electing fund. The preceding sentence shall not apply if the taxpayer elects to recognize gain (as of the last day of the last taxable year for which the company was a passive foreign investment company (determined without regard to the preceding sentence)) under rules similar to the rules of section 1291 (d)(2). (2) Certain corporations not treated as PFICs during start-up year A corporation shall not be treated as a passive foreign investment company for the first taxable year such corporation has gross income (hereinafter in this paragraph referred to as the start-up year) if (A) no predecessor of such corporation was a passive foreign investment company, (B) it is established to the satisfaction of the Secretary that such corporation will not be a passive foreign investment company for either of the 1st 2 taxable years following the startup year, and (C) such corporation is not a passive foreign investment company for either of the 1st 2 taxable years following the start-up year. (3) Certain corporations changing businesses A corporation shall not be treated as a passive foreign investment company for any taxable year if (A) neither such corporation (nor any predecessor) was a passive foreign investment company for any prior taxable year, (B) it is established to the satisfaction of the Secretary that (i) substantially all of the passive income of the corporation for the taxable year is attributable to proceeds from the disposition of 1 or more active trades or businesses, and (ii) such corporation will not be a passive foreign investment company for either of the 1st 2 taxable years following such taxable year, and (C) such corporation is not a passive foreign investment company for either of such 2 taxable years. (4) Separate interests treated as separate corporations Under regulations prescribed by the Secretary, where necessary to carry out the purposes of this part, separate classes of stock (or other interests) in a corporation shall be treated as interests in separate corporations. (5) Application of part where stock held by other entity (A) In general Under regulations, in any case in which a United States person is treated as owning stock in a passive foreign investment company by reason of subsection (a) (i) any disposition by the United States person or the person owning such stock which results in the United States person being treated as no longer owning such stock, or (ii) any distribution of property in respect of such stock to the person holding such stock, shall be treated as a disposition by, or distribution to, the United States person with respect to the stock in the passive foreign investment company. (B) Amount treated in same manner as previously taxed income Rules similar to the rules of section 959 (b) shall apply to any amount described in subparagraph (A) and to any amount included in gross income under section 1293 (a) (or which would have been so included but for section 951 (f)) [1] in respect of stock which the taxpayer is treated as owning under subsection (a). (6) Dispositions Except as provided in regulations, if a taxpayer uses any stock in a passive foreign investment company as security for a loan, the taxpayer shall be treated as having disposed of such stock. (7) Treatment of certain foreign corporations owning stock in 25-percent owned domestic corporation (A) In general If (i) a foreign corporation is subject to the tax imposed by section531 (or waives any benefit under any treaty which would otherwise prevent the imposition of such tax), and

(ii) such foreign corporation owns at least 25 percent (by value) of the stock of a domestic corporation, for purposes of determining whether such foreign corporation is a passive foreign investment company, any qualified stock held by such domestic corporation shall be treated as an asset which does not produce passive income (and is not held for the production of passive income) and any amount included in gross income with respect to such stock shall not be treated as passive income. (B) Qualified stock For purposes of subparagraph (A), the term qualified stock means any stock in a C corporation which is a domestic corporation and which is not a regulated investment company or real estate investment trust. (8) Treatment of certain subpart F inclusions Any amount included in gross income under section 951 (a)(1)(B) shall be treated as a distribution received with respect to the stock. (c) Treatment of stock held by pooled income fund If stock in a passive foreign investment company is owned (or treated as owned under subsection (a)) by a pooled income fund (as defined in section642 (c)(5)) and no portion of any gain from a disposition of such stock may be allocated to income under the terms of the governing instrument of such fund (1) section 1291 shall not apply to any gain on a disposition of such stock by such fund if (without regard to section 1291) a deduction would be allowable with respect to such gain under section 642 (c)(3), (2) section 1293 shall not apply with respect to such stock, and (3) in determining whether section 1291 applies to any distribution in respect of such stock, subsection (d) of section 1291 shall not apply. (d) Treatment of certain leased property For purposes of this part (1) In general Any tangible personal property with respect to which a foreign corporation is the lessee under a lease with a term of at least 12 months shall be treated as an asset actually held by such corporation. (2) Amount taken into account (A) In general The amount taken into account under section 1296 (a)(2) [1] with respect to any asset to which paragraph (1) applies shall be the unamortized portion (as determined under regulations prescribed by the Secretary) of the present value of the payments under the lease for the use of such property. (B) Present value For purposes of subparagraph (A), the present value of payments described in subparagraph (A) shall be determined in the manner provided in regulations prescribed by the Secretary (i) as of the beginning of the lease term, and (ii) except as provided in such regulations, by using a discount rate equal to the applicable Federal rate determined under section1274 (d) (I) by substituting the lease term for the term of the debt instrument, and (II) without regard to paragraph (2) or (3) thereof. (3) Exceptions This subsection shall not apply in any case where (A) the lessor is a related person (as defined in section 954 (d)(3)) with respect to the foreign corporation, or (B) a principal purpose of leasing the property was to avoid the provisions of this part. (e) Special rules for certain intangibles For purposes of this part (1) Research expenditures The adjusted basis of the total assets of a controlled foreign corporation shall be increased by the research or experimental expenditures (within the meaning of section 174) paid or incurred by such foreign corporation during the taxable year and the preceding 2 taxable years. Any expenditure otherwise taken into account under the preceding sentence shall be

reduced by the amount of any reimbursement received by the controlled foreign corporation with respect to such expenditure. (2) Certain licensed intangibles (A) In general In the case of any intangible property (as defined in section 936 (h)(3)(B)) with respect to which a controlled foreign corporation is a licensee and which is used by such foreign corporation in the active conduct of a trade or business, the adjusted basis of the total assets of such foreign corporation shall be increased by an amount equal to 300 percent of the payments made during the taxable year by such foreign corporation for the use of such intangible property. (B) Exceptions Subparagraph (A) shall not apply to (i) any payments to a foreign person if such foreign person is a related person (as defined in section 954 (d)(3)) with respect to the controlled foreign corporation, and (ii) any payments under a license if a principal purpose of entering into such license was to avoid the provisons [2] of this part. (3) Controlled foreign corporation For purposes of this subsection, the term controlled foreign corporation has the meaning given such term by section 957 (a). (f) Regulations The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the purposes of this part.

[1] See References in Text notes below. [2] So in original. Probably should be provisions.

Subchapter QReadjustment of Tax Between Years and Special Limitations


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PART IINCOME AVERAGING ( 1301)

PART IIMITIGATION OF EFFECT OF LIMITATIONS AND OTHER PROVISIONS ( 13111315) [PART IIIREPEALED] ( 1321) [PART IVREPEALED] ( 1331_to_1337) PART VCLAIM OF RIGHT ( 13411342) [PART VIREPEALED] ( 13461348) PART VIIRECOVERIES OF FOREIGN EXPROPRIATION LOSSES ( 1351)

PART IINCOME AVERAGING


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1301. Averaging of farm income

1301. Averaging of farm income


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(a) In general At the election of an individual engaged in a farming business or fishing business, the tax imposed by section 1 for such taxable year shall be equal to the sum of (1) a tax computed under such section on taxable income reduced by elected farm income, plus (2) the increase in tax imposed by section 1 which would result if taxable income for each of the 3 prior taxable years were increased by an amount equal to one-third of the elected farm income. Any adjustment under this section for any taxable year shall be taken into account in applying this section for any subsequent taxable year. (b) Definitions In this section (1) Elected farm income (A) In general The term elected farm income means so much of the taxable income for the taxable year (i) which is attributable to any farming business or fishing business; and (ii) which is specified in the election under subsection (a). (B) Treatment of gains For purposes of subparagraph (A), gain from the sale or other disposition of property (other than land) regularly used by the taxpayer in such a farming business or fishing business for a substantial period shall be treated as attributable to such a farming business or fishing business. (2) Individual The term individual shall not include any estate or trust. (3) Farming business The term farming business has the meaning given such term by section263A (e)(4). (4) Fishing business The term fishing business means the conduct of commercial fishing as defined in section 3 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1802). (c) Regulations The Secretary shall prescribe such regulations as may be appropriate to carry out the purposes of this section, including regulations regarding (1) the order and manner in which items of income, gain, deduction, or loss, or limitations on tax, shall be taken into account in computing the tax imposed by this chapter on the income of any taxpayer to whom this section applies for any taxable year, and (2) the treatment of any short taxable year.

PART IIMITIGATION OF EFFECT OF LIMITATIONS AND OTHER PROVISIONS


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1311. Correction of error 1312. Circumstances of adjustment 1313. Definitions

1314. Amount and method of adjustment [ 1315. Repealed.]

1311. Correction of error


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(a) General rule If a determination (as defined in section 1313) is described in one or more of the paragraphs of section 1312 and, on the date of the determination, correction of the effect of the error referred to in the applicable paragraph of section 1312 is prevented by the operation of any law or rule of law, other than this part and other than section 7122 (relating to compromises), then the effect of the error shall be corrected by an adjustment made in the amount and in the manner specified in section 1314. (b) Conditions necessary for adjustment (1) Maintenance of an inconsistent position Except in cases described in paragraphs (3) (B) and (4) of section 1312, an adjustment shall be made under this part only if (A) in case the amount of the adjustment would be credited or refunded in the same manner as an overpayment under section 1314, there is adopted in the determination a position maintained by the Secretary, or (B) in case the amount of the adjustment would be assessed and collected in the same manner as a deficiency under section 1314, there is adopted in the determination a position maintained by the taxpayer with respect to whom the determination is made, and the position maintained by the Secretary in the case described in subparagraph (A) or maintained by the taxpayer in the case described in subparagraph (B) is inconsistent with the erroneous inclusion, exclusion, omission, allowance, disallowance, recognition, or nonrecognition, as the case may be. (2) Correction not barred at time of erroneous action (A) Determination described in section 1312 (3)(B) In the case of a determination described in section 1312 (3)(B)(relating to certain exclusions from income), adjustment shall be made under this part only if assessment of a deficiency for the taxable year in which the item is includible or against the related taxpayer was not barred, by any law or rule of law, at the time the Secretary first maintained, in a notice of deficiency sent pursuant to section 6212 or before the Tax Court that the item described in section 1312 (3)(B) should be included in the gross income of the taxpayer for the taxable year to which the determination relates. (B) Determination described in section 1312 (4) In the case of a determination described in section 1312 (4) (relating to disallowance of certain deductions and credits), adjustment shall be made under this part only if credit or refund of the overpayment attributable to the deduction or credit described in such section which should have been allowed to the taxpayer or related taxpayer was not barred, by any law or rule of law, at the time the taxpayer first maintained before the Secretary or before the Tax Court, in writing, that he was entitled to such deduction or credit for the taxable year to which the determination relates. (3) Existence of relationship In case the amount of the adjustment would be assessed and collected in the same manner as a deficiency (except for cases described in section1312 (3)(B)), the adjustment shall not be made with respect to a related taxpayer unless he stands in such relationship to the taxpayer at the time the latter first maintains the inconsistent position in a return, claim for refund, or petition (or amended petition) to the Tax Court for the taxable year with respect to which the determination is made, or if such position is not so maintained, then at the time of the determination.

1312. Circumstances of adjustment


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The circumstances under which the adjustment provided in section 1311 is authorized are as follows: (1) Double inclusion of an item of gross income The determination requires the inclusion in gross income of an item which was erroneously included in the gross income of the taxpayer for another taxable year or in the gross income of a related taxpayer. (2) Double allowance of a deduction or credit The determination allows a deduction or credit which was erroneously allowed to the taxpayer for another taxable year or to a related taxpayer. (3) Double exclusion of an item of gross income (A) Items included in income The determination requires the exclusion from gross income of an item included in a return filed by the taxpayer or with respect to which tax was paid and which was erroneously excluded or omitted from the gross income of the taxpayer for another taxable year, or from the gross income of a related taxpayer; or (B) Items not included in income The determination requires the exclusion from gross income of an item not included in a return filed by the taxpayer and with respect to which the tax was not paid but which is includible in the gross income of the taxpayer for another taxable year or in the gross income of a related taxpayer. (4) Double disallowance of a deduction or credit The determination disallows a deduction or credit which should have been allowed to, but was not allowed to, the taxpayer for another taxable year, or to a related taxpayer. (5) Correlative deductions and inclusions for trusts or estates and legatees, beneficiaries, or heirs The determination allows or disallows any of the additional deductions allowable in computing the taxable income of estates or trusts, or requires or denies any of the inclusions in the computation of taxable income of beneficiaries, heirs, or legatees, specified in subparts A to E, inclusive (secs.641 and following, relating to estates, trusts, and beneficiaries) of part I of subchapter J of this chapter, or corresponding provisions of prior internal revenue laws, and the correlative inclusion or deduction, as the case may be, has been erroneously excluded, omitted, or included, or disallowed, omitted, or allowed, as the case may be, in respect of the related taxpayer. (6) Correlative deductions and credits for certain related corporations The determination allows or disallows a deduction (including a credit) in computing the taxable income (or, as the case may be, net income, normal tax net income, or surtax net income) of a corporation, and a correlative deduction or credit has been erroneously allowed, omitted, or disallowed, as the case may be, in respect of a related taxpayer described in section 1313(c)(7). (7) Basis of property after erroneous treatment of a prior transaction (A) General rule The determination determines the basis of property, and in respect of any transaction on which such basis depends, or in respect of any transaction which was erroneously treated as affecting such basis, there occurred, with respect to a taxpayer described in subparagraph (B) of this paragraph, any of the errors described in subparagraph (C) of this paragraph. (B) Taxpayers with respect to whom the erroneous treatment occurred The taxpayer with respect to whom the erroneous treatment occurred must be (i) the taxpayer with respect to whom the determination is made, (ii) a taxpayer who acquired title to the property in the transaction and from whom, mediately or immediately, the taxpayer with respect to whom the determination is made derived title, or (iii) a taxpayer who had title to the property at the time of the transaction and from whom, mediately or immediately, the taxpayer with respect to whom the determination is made

derived title, if the basis of the property in the hands of the taxpayer with respect to whom the determination is made is determined under section 1015 (a)(relating to the basis of property acquired by gift). (C) Prior erroneous treatment With respect to a taxpayer described in subparagraph (B) of this paragraph (i) there was an erroneous inclusion in, or omission from, gross income, (ii) there was an erroneous recognition, or nonrecognition, of gain or loss, or (iii) there was an erroneous deduction of an item properly chargeable to capital account or an erroneous charge to capital account of an item properly deductible.

1313. Definitions
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(a) Determination For purposes of this part, the term determination means (1) a decision by the Tax Court or a judgment, decree, or other order by any court of competent jurisdiction, which has become final; (2) a closing agreement made under section 7121; (3) a final disposition by the Secretary of a claim for refund. For purposes of this part, a claim for refund shall be deemed finally disposed of by the Secretary (A) as to items with respect to which the claim was allowed, on the date of allowance of refund or credit or on the date of mailing notice of disallowance (by reason of offsetting items) of the claim for refund, and (B) as to items with respect to which the claim was disallowed, in whole or in part, or as to items applied by the Secretary in reduction of the refund or credit, on expiration of the time for instituting suit with respect thereto (unless suit is instituted before the expiration of such time); or (4) under regulations prescribed by the Secretary, an agreement for purposes of this part, signed by the Secretary and by any person, relating to the liability of such person (or the person for whom he acts) in respect of a tax under this subtitle for any taxable period. (b) Taxpayer Notwithstanding section 7701 (a)(14), the term taxpayer means any person subject to a tax under the applicable revenue law. (c) Related taxpayer For purposes of this part, the term related taxpayer means a taxpayer who, with the taxpayer with respect to whom a determination is made, stood, in the taxable year with respect to which the erroneous inclusion, exclusion, omission, allowance, or disallowance was made, in one of the following relationships: (1) husband and wife, (2) grantor and fiduciary, (3) grantor and beneficiary, (4) fiduciary and beneficiary, legatee, or heir, (5) decedent and decedents estate, (6) partner, or (7) member of an affiliated group of corporations (as defined in section1504).

1314. Amount and method of adjustment


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(a) Ascertainment of amount of adjustment In computing the amount of an adjustment under this part there shall first be ascertained the tax previously determined for the taxable year with respect to which the error was made. The amount of the tax previously determined shall be the excess of (1) the sum of

(A) the amount shown as the tax by the taxpayer on his return (determined as provided in section 6211 (b)(1), (3), and (4), relating to the definition of deficiency), if a return was made by the taxpayer and an amount was shown as the tax by the taxpayer thereon, plus (B) the amounts previously assessed (or collected without assessment) as a deficiency, over (2) the amount of rebates, as defined in section 6211 (b)(2), made. There shall then be ascertained the increase or decrease in tax previously determined which results solely from the correct treatment of the item which was the subject of the error (with due regard given to the effect of the item in the computation of gross income, taxable income, and other matters under this subtitle). A similar computation shall be made for any other taxable year affected, or treated as affected, by a net operating loss deduction (as defined in section 172) or by a capital loss carryback or carryover (as defined in section1212), determined with reference to the taxable year with respect to which the error was made. The amount so ascertained (together with any amounts wrongfully collected as additions to the tax or interest, as a result of such error) for each taxable year shall be the amount of the adjustment for that taxable year. (b) Method of adjustment The adjustment authorized in section 1311 (a) shall be made by assessing and collecting, or refunding or crediting, the amount thereof in the same manner as if it were a deficiency determined by the Secretary with respect to the taxpayer as to whom the error was made or an overpayment claimed by such taxpayer, as the case may be, for the taxable year or years with respect to which an amount is ascertained under subsection (a), and as if on the date of the determination one year remained before the expiration of the periods of limitation upon assessment or filing claim for refund for such taxable year or years. If, as a result of a determination described in section 1313 (a)(4), an adjustment has been made by the assessment and collection of a deficiency or the refund or credit of an overpayment, and subsequently such determination is altered or revoked, the amount of the adjustment ascertained under subsection (a) of this section shall be redetermined on the basis of such alteration or revocation and any overpayment or deficiency resulting from such redetermination shall be refunded or credited, or assessed and collected, as the case may be, as an adjustment under this part. In the case of an adjustment resulting from an increase or decrease in a net operating loss or net capital loss which is carried back to the year of adjustment, interest shall not be collected or paid for any period prior to the close of the taxable year in which the net operating loss or net capital loss arises. (c) Adjustment unaffected by other items The amount to be assessed and collected in the same manner as a deficiency, or to be refunded or credited in the same manner as an overpayment, under this part, shall not be diminished by any credit or set-off based upon any item other than the one which was the subject of the adjustment. The amount of the adjustment under this part, if paid, shall not be recovered by a claim or suit for refund or suit for erroneous refund based upon any item other than the one which was the subject of the adjustment. (d) Periods for which adjustments may be made No adjustment shall be made under this part in respect of any taxable year beginning prior to January 1, 1932. (e) Taxes imposed by subtitle C This part shall not apply to any tax imposed by subtitle C (sec. 3101 and following relating to employment taxes).

1315. Repealed. Pub. L. 94455, title XIX, 1901(a)(143), Oct. 4, 1976, 90 Stat. 1788]
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Section, act Aug. 16, 1954, ch. 736, 68A Stat. 341, related to effective date of this part.

[PART IIIREPEALED]
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[ 1321. Repealed.]

1321. Repealed. Pub. L. 94455, title XIX, 1901(a)(144), Oct. 4, 1976, 90 Stat. 1788]
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Section, act Aug. 16, 1954, ch. 736, 68A Stat. 342, related to involuntary liquidation of LIFO inventories.

[PART IVREPEALED]
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[ 1331 to 1337. Repealed.]

1331 to 1337. Repealed. Pub. L. 94455, title XIX, 1901(a)(145)(A), Oct. 4, 1976, 90 Stat. 1788]
How Current is This?

Section 1331, act Aug. 16, 1954, ch. 736, 68A Stat. 343, Section 1332, act Aug. 16, 1954, ch. 736, 68A Stat. 343, of war loss recoveries. Section 1333, act Aug. 16, 1954, ch. 736, 68A Stat. 344, by prior benefits. Section 1334, act Aug. 16, 1954, ch. 736, 68A Stat. 346, investments referable to destroyed or seized property. Section 1335, act Aug. 16, 1954, ch. 736, 68A Stat. 346, application of section 1333. Section 1336, act Aug. 16, 1954, ch. 736, 68A Stat. 347, property. Section 1337, act Aug. 16, 1954, ch. 736, 68A Stat. 347,

related to war loss recoveries. related to inclusion in gross income related to tax adjustment measured related to restoration of value of related to election by taxpayer for related to basis of recovered related to applicable rules.

PART VCLAIM OF RIGHT


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1341. Computation of tax where taxpayer restores substantial amount held under claim of right

[ 1342. Repealed.]

1341. Computation of tax where taxpayer restores substantial amount held under claim of right
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(a) General rule If (1) an item was included in gross income for a prior taxable year (or years) because it appeared that the taxpayer had an unrestricted right to such item; (2) a deduction is allowable for the taxable year because it was established after the close of such prior taxable year (or years) that the taxpayer did not have an unrestricted right to such item or to a portion of such item; and (3) the amount of such deduction exceeds $3,000, then the tax imposed by this chapter for the taxable year shall be the lesser of the following: (4) the tax for the taxable year computed with such deduction; or (5) an amount equal to (A) the tax for the taxable year computed without such deduction, minus (B) the decrease in tax under this chapter (or the corresponding provisions of prior revenue laws) for the prior taxable year (or years) which would result solely from the exclusion of such item (or portion thereof) from gross income for such prior taxable year (or years). For purposes of paragraph (5)(B), the corresponding provisions of the Internal Revenue Code of 1939 shall be chapter 1 of such code (other than subchapter E, relating to selfemployment income) and subchapter E of chapter 2 of such code. (b) Special rules (1) If the decrease in tax ascertained under subsection (a)(5)(B) exceeds the tax imposed by this chapter for the taxable year (computed without the deduction) such excess shall be considered to be a payment of tax on the last day prescribed by law for the payment of tax for the taxable year, and shall be refunded or credited in the same manner as if it were an overpayment for such taxable year. (2) Subsection (a) does not apply to any deduction allowable with respect to an item which was included in gross income by reason of the sale or other disposition of stock in trade of the taxpayer (or other property of a kind which would properly have been included in the inventory of the taxpayer if on hand at the close of the prior taxable year) or property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business. This paragraph shall not apply if the deduction arises out of refunds or repayments with respect to rates made by a regulated public utility (as defined in section 7701 (a) (33)without regard to the limitation contained in the last two sentences thereof) if such refunds or repayments are required to be made by the Government, political subdivision, agency, or instrumentality referred to in such section, or by an order of a court, or are made in settlement of litigation or under threat or imminence of litigation. (3) If the tax imposed by this chapter for the taxable year is the amount determined under subsection (a)(5), then the deduction referred to in subsection (a)(2) shall not be taken into account for any purpose of this subtitle other than this section. (4) For purposes of determining whether paragraph (4) or paragraph (5) of subsection (a) applies (A) in any case where the deduction referred to in paragraph (4) of subsection (a) results in a net operating loss, such loss shall, for purposes of computing the tax for the taxable year

under such paragraph (4), be carried back to the same extent and in the same manner as is provided under section 172; and (B) in any case where the exclusion referred to in paragraph (5)(B) of subsection (a) results in a net operating loss or capital loss for the prior taxable year (or years), such loss shall, for purposes of computing the decrease in tax for the prior taxable year (or years) under such paragraph (5) (B), be carried back and carried over to the same extent and in the same manner as is provided under section 172or section 1212, except that no carryover beyond the taxable year shall be taken into account. (5) For purposes of this chapter, the net operating loss described in paragraph (4)(A) of this subsection, or the net operating loss or capital loss described in paragraph (4)(B) of this subsection, as the case may be, shall (after the application of paragraph (4) or (5)(B) of subsection (a) for the taxable year) be taken into account under section 172 or 1212 for taxable years after the taxable year to the same extent and in the same manner as (A) a net operating loss sustained for the taxable year, if paragraph (4) of subsection (a) applied, or (B) a net operating loss or capital loss sustained for the prior taxable year (or years), if paragraph (5)(B) of subsection (a) applied.

1342. Repealed. Pub. L. 94455, title XIX, 1901(a)(147), Oct. 4, 1976, 90 Stat. 1788]
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Section, added Aug. 12, 1955, ch. 870, 3, 69 Stat. 717, related to computation of tax where taxpayer recovers substantial amount held by another under claim of right.

[PART VIREPEALED]
How Current is This?

[ 1346. Repealed.] [ 1347. Repealed.] [ 1348. Repealed.]

1346. Repealed. Pub. L. 94455, title XIX, 1901(a)(148), Oct. 4, 1976, 90 Stat. 1788]
How Current is This?

Section, act Aug. 16, 1954, ch. 736, 68A Stat. 349, related to recovery of unconstitutional Federal taxes.

1347. Repealed. Pub. L. 94455, title XIX, 1951(b)(12)(A), Oct. 4, 1976, 90 Stat. 1840]
How Current is This?

Section, acts Aug. 16, 1954, ch. 736, 68A Stat. 349; Sept. 2, 1958, Pub. L. 85866, title I, 61(a), 72 Stat. 1648; Dec. 30, 1969, Pub. L. 91172, title VIII, 803(d)(5), 83 Stat. 684, related to claims against the United States involving acquisition of property.

1348. Repealed. Pub. L. 9734, title I, 101(c) (1), Aug. 13, 1981, 95 Stat. 183]
How Current is This?

Section, added Pub. L. 91172, title VIII, 804(a), Dec. 30, 1969, 83 Stat. 685; amended Pub. L. 93406, title II, 2005(c)(14), Sept. 2, 1974, 88 Stat. 992; Pub. L. 94 455, title III, 302(a), Oct. 4, 1976, 90 Stat. 1554; Pub. L. 95600, title IV, 441(a), 442 (a), title VII, 701(x)(1), (2), Nov. 6, 1978, 92 Stat. 2878, 2920;Pub. L. 95 600, title IV, 441(a), as amended Pub. L. 96222, title I, 104(a)(5)(B), Apr. 1, 1980, 94 Stat. 218, provided for a 50-percent maximum rate on personal service income.

PART VIIRECOVERIES OF FOREIGN EXPROPRIATION LOSSES


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1351. Treatment of recoveries of foreign expropriation losses

1351. Treatment of recoveries of foreign expropriation losses


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(a) Election (1) In general This section shall apply only to a recovery, by a domestic corporation subject to the tax imposed by section 11 or 801, of a foreign expropriation loss sustained by such corporation and only if such corporation was subject to the tax imposed by section 11 or 801, as the case may be, for the year of the loss and elects to have the provisions of this section apply with respect to such loss. (2) Time, manner, and scope An election under paragraph (1) shall be made at such time and in such manner as the Secretary may prescribe by regulations. An election made with respect to any foreign expropriation loss shall apply to all recoveries in respect of such loss. (b) Definition of foreign expropriation loss For purposes of this section, the term foreign expropriation loss means any loss sustained by reason of the expropriation, intervention, seizure, or similar taking of property by the government of any foreign country, any political subdivision thereof, or any agency or instrumentality of the foregoing. For purposes of the preceding sentence, a debt which becomes worthless shall, to the extent of any deduction allowed under section 166 (a), be treated as a loss. (c) Amount of recovery (1) General rule The amount of any recovery of a foreign expropriation loss is the amount of money and the fair market value of other property received in respect of such loss, determined as of the date of receipt.

(2) Special rule for life insurance companies The amount of any recovery of a foreign expropriation loss includes, in the case of a life insurance company, the amount of decrease of any item taken into account under section 807 (c), to the extent such decrease is attributable to the release, by reason of such loss, of its liabilities with respect to such item. (d) Adjustment for prior tax benefits (1) In general That part of the amount of a recovery of a foreign expropriation loss to which this section applies which, when added to the aggregate of the amounts of previous recoveries with respect to such loss, does not exceed the allowable deductions in prior taxable years on account of such loss shall be excluded from gross income for the taxable year of the recovery for purposes of computing the tax under this subtitle; but there shall be added to, and assessed and collected as a part of, the tax under this subtitle for such taxable year an amount equal to the total increase in the tax under this subtitle for all taxable years which would result by decreasing, in an amount equal to such part of the recovery so excluded, the deductions allowable in the prior taxable years on account of such loss. For purposes of this paragraph, if the loss to which the recovery relates was taken into account as a loss from the sale or exchange of a capital asset, the amount of the loss shall be treated as an allowable deduction even though there were no gains against which to allow such loss. (2) Computation The increase in the tax for each taxable year referred to in paragraph (1) shall be computed in accordance with regulations prescribed by the Secretary. Such regulations shall give effect to previous recoveries of any kind (including recoveries described in section 111, relating to recovery of tax benefit items) with respect to any prior taxable year, but shall otherwise treat the tax previously determined for any taxable year in accordance with the principles set forth in section 1314 (a) (relating to correction of errors). Subject to the provisions of paragraph (3), all credits allowable against the tax for any taxable year, and all carryovers and carrybacks affected by so decreasing the allowable deductions, shall be taken into account in computing the increase in the tax. (3) Foreign taxes For purposes of this subsection, any choice made under subpart A of part III of subchapter N (relating to foreign tax credit) for any taxable year may be changed. (4) Substitution of current tax rate For purposes of this subsection, the rates of tax specified in section 11(b) for the taxable year of the recovery shall be treated as having been in effect for all prior taxable years. (e) Gain on recovery That part of the amount of a recovery of a foreign expropriation loss to which this section applies which is not excluded from gross income under subsection (d)(1) shall be considered for the taxable year of the recovery as gain on the involuntary conversion of property as a result of its destruction or seizure and shall be recognized or not recognized as provided in section 1033. (f) Basis of recovered property The basis of property (other than money) received as a recovery of a foreign expropriation loss to which this section applies shall be an amount equal to its fair market value on the date of receipt, reduced by such part of the gain under subsection (e) which is not recognized as provided in section 1033. (g) Restoration of value of investments For purposes of this section, if the value of any interest in, or with respect to, property (including any interest represented by a security, as defined in section 165 (g)(2)) (1) which became worthless by reason of the expropriation, intervention, seizure, or similar taking of such property by the government of any foreign country, any political subdivision thereof, or any agency or instrumentality of the foregoing, and (2) which was taken into account as a loss from the sale or exchange of a capital asset or with respect to which a deduction for a loss was allowed under section 165 or a deduction for a bad debt was allowed under section166, is restored in whole or in part by reason of any recovery of money or other property in respect of the property which became worthless, the value so restored shall be treated as property received as a recovery in respect of such loss or such bad debt.

(h) Special rule for evidences of indebtedness Bonds or other evidences of indebtedness received as a recovery of a foreign expropriation loss to which this section applies shall not be considered to have any original issue discount within the meaning of section 1273 (a). (i) Adjustments for succeeding years For purposes of this subtitle, proper adjustment shall be made, under regulations prescribed by the Secretary, in (1) the credit under section 27 (relating to foreign tax credit), (2) the credit under section 38 (relating to general business credit), (3) the net operating loss deduction under section 172, or the operations loss deduction under section 810, (4) the capital loss carryover under section 1212 (a), and (5) such other items as may be specified by such regulations, for the taxable year of a recovery of a foreign expropriation loss to which this section applies, and for succeeding taxable years, to take into account items changed in making the computations under subsection (d) for taxable years prior to the taxable year of such recovery.

Subchapter RElection To Determine Corporate Tax on Certain International Shipping Activities Using Per Ton Rate
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1352. Alternative tax on qualifying shipping activities 1353. Notional shipping income 1354. Alternative tax election; revocation; termination 1355. Definitions and special rules 1356. Qualifying shipping activities 1357. Items not subject to regular tax; depreciation; interest 1358. Allocation of credits, income, and deductions 1359. Disposition of qualifying vessels

1352. Alternative tax on qualifying shipping activities


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In the case of an electing corporation, the tax imposed by section 11 shall be the amount equal to the sum of (1) the tax imposed by section 11 determined after the application of this subchapter, and (2) a tax equal to (A) the highest rate of tax specified in section 11, multiplied by (B) the notional shipping income for the taxable year.

1353. Notional shipping income


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(a) In general For purposes of this subchapter, the notional shipping income of an electing corporation shall be the sum of the amounts determined under subsection (b) for each qualifying vessel operated by such electing corporation. (b) Amounts (1) In general For purposes of subsection (a), the amount of notional shipping income of an electing corporation for each qualifying vessel for the taxable year shall equal the product of (A) the daily notional shipping income, and (B) the number of days during the taxable year that the electing corporation operated such vessel as a qualifying vessel in United States foreign trade. (2) Treatment of vessels the income from which is not otherwise subject to tax In the case of a qualifying vessel any of the income from which is not included in gross income by reason of section 883 or otherwise, the amount of notional shipping income from such vessel for the taxable year shall be the amount which bears the same ratio to such shipping income (determined without regard to this paragraph) as the gross income from the operation of such vessel in the United States foreign trade bears to the sum of such gross income and the income so excluded. (c) Daily notional shipping income For purposes of subsection (b), the daily notional shipping income from the operation of a qualifying vessel is (1) 40 cents for each 100 tons of so much of the net tonnage of the vessel as does not exceed 25,000 net tons, and (2) 20 cents for each 100 tons of so much of the net tonnage of the vessel as exceeds 25,000 net tons. (d) Multiple operators of vessel If for any period 2 or more persons are operators of a qualifying vessel, the notional shipping income from the operation of such vessel for such period shall be allocated among such persons on the basis of their respective ownership, charter, and operating agreement interests in such vessel or on such other basis as the Secretary may prescribe by regulations.

1354. Alternative tax election; revocation; termination


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(a) In general A qualifying vessel operator may elect the application of this subchapter. (b) Time and manner; years for which effective An election under this subchapter (1) shall be made in such form as prescribed by the Secretary, and (2) shall be effective for the taxable year for which made and all succeeding taxable years until terminated under subsection (d). Such election may be effective for any taxable year only if made on or before the due date (including extensions) for filing the corporations return for such taxable year. (c) Consistent elections by members of controlled groups An election under subsection (a) by a member of a controlled group shall apply to all qualifying vessel operators that are members of such group. (d) Termination (1) By revocation (A) In general An election under subsection (a) may be terminated by revocation.

(B) When effective Except as provided in subparagraph (C) (i) a revocation made during the taxable year and on or before the 15th day of the 3d month thereof shall be effective on the 1st day of such taxable year, and (ii) a revocation made during the taxable year but after such 15th day shall be effective on the 1st day of the following taxable year. (C) Revocation may specify prospective date If the revocation specifies a date for revocation which is on or after the day on which the revocation is made, the revocation shall be effective for taxable years beginning on and after the date so specified. (2) By person ceasing to be qualifying vessel operator (A) In general An election under subsection (a) shall be terminated whenever (at any time on or after the 1st day of the 1st taxable year for which the corporation is an electing corporation) such corporation ceases to be a qualifying vessel operator. (B) When effective Any termination under this paragraph shall be effective on and after the date of cessation. (C) Annualization The Secretary shall prescribe such annualization and other rules as are appropriate in the case of a termination under this paragraph. (e) Election after termination If a qualifying vessel operator has made an election under subsection (a) and if such election has been terminated under subsection (d), such operator (and any successor operator) shall not be eligible to make an election under subsection (a) for any taxable year before its 5th taxable year which begins after the 1st taxable year for which such termination is effective, unless the Secretary consents to such election.

1355. Definitions and special rules


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(a) Definitions For purposes of this subchapter (1) Electing corporation The term electing corporation means any corporation for which an election is in effect under this subchapter. (2) Electing group; controlled group (A) Electing group The term electing group means a controlled group of which one or more members is an electing corporation. (B) Controlled group The term controlled group means any group which would be treated as a single employer under subsection (a) or (b) of section52 if paragraphs (1) and (2) of section 52 (a) did not apply. (3) Qualifying vessel operator The term qualifying vessel operator means any corporation (A) who operates one or more qualifying vessels, and (B) who meets the shipping activity requirement in subsection (c). (4) Qualifying vessel The term qualifying vessel means a self-propelled (or a combination self-propelled and nonself-propelled) United States flag vessel of not less than 6,000 deadweight tons used exclusively in the United States foreign trade during the period that the election under this subchapter is in effect. (5) United States flag vessel The term United States flag vessel means any vessel documented under the laws of the United States.

(6) United States domestic trade The term United States domestic trade means the transportation of goods or passengers between places in the United States. (7) United States foreign trade The term United States foreign trade means the transportation of goods or passengers between a place in the United States and a foreign place or between foreign places. (b) Operating a vessel For purposes of this subchapter (1) In general Except as provided in paragraph (2), a person is treated as operating any vessel during any period if (A) (i) such vessel is owned by, or chartered (including a time charter) to, the person, or (ii) the person provides services for such vessel pursuant to an operating agreement, and (B) such vessel is in use as a qualifying vessel during such period. (2) Bareboat charters A person is treated as operating and using a vessel that it has chartered out on bareboat charter terms only if (A) (i) the vessel is temporarily surplus to the persons requirements and the term of the charter does not exceed 3 years, or (ii) the vessel is bareboat chartered to a member of a controlled group which includes such person or to an unrelated person who sub-bareboats or time charters the vessel to such a member (including the owner of the vessel), and (B) the vessel is used as a qualifying vessel by the person to whom ultimately chartered. (c) Shipping activity requirement For purposes of this section (1) In general Except as otherwise provided in this subsection, a corporation meets the shipping activity requirement of this subsection for any taxable year only if the requirement of paragraph (4) is met for each of the 2 preceding taxable years. (2) Special rule for 1st year of election A corporation meets the shipping activity requirement of this subsection for the first taxable year for which the election under section 1354 (a) is in effect only if the requirement of paragraph (4) is met for the preceding taxable year. (3) Controlled groups A corporation who is a member of a controlled group meets the shipping activity requirement of this subsection only if such requirement is met determined by treating all members of such group as 1 person. (4) Requirement The requirement of this paragraph is met for any taxable year if, on average during such year, at least 25 percent of the aggregate tonnage of qualifying vessels used by the corporation were owned by such corporation or chartered to such corporation on bareboat charter terms. (d) Activities carried on partnerships, etc. In applying this subchapter to a partner in a partnership (1) each partner shall be treated as operating vessels operated by the partnership, (2) each partner shall be treated as conducting the activities conducted by the partnership, and (3) the extent of a partners ownership, charter, or operating agreement interest in any vessel operated by the partnership shall be determined on the basis of the partners interest in the partnership. A similar rule shall apply with respect to other pass-thru entities. (e) Effect of temporarily ceasing to operate a qualifying vessel (1) In general For purposes of subsections (b) and (c), an electing corporation shall be treated as continuing to use a qualifying vessel during any period of temporary cessation if the electing corporation gives timely notice to the Secretary stating

(A) that it has temporarily ceased to operate the qualifying vessel, and (B) its intention to resume operating the qualifying vessel. (2) Notice Notice shall be deemed timely if given not later than the due date (including extensions) for the corporations tax return for the taxable year in which the temporary cessation begins. (3) Period disregard in effect The period of temporary cessation under paragraph (1) shall continue until the earlier of the date on which (A) the electing corporation abandons its intention to resume operation of the qualifying vessel, or (B) the electing corporation resumes operation of the qualifying vessel. (f) Effect of temporarily operating a qualifying vessel in the United States domestic trade (1) In general For purposes of this subchapter, an electing corporation shall be treated as continuing to use a qualifying vessel in the United States foreign trade during any period of temporary use in the United States domestic trade if the electing corporation gives timely notice to the Secretary stating (A) that it temporarily operates or has operated in the United States domestic trade a qualifying vessel which had been used in the United States foreign trade, and (B) its intention to resume operation of the vessel in the United States foreign trade. (2) Notice Notice shall be deemed timely if given not later than the due date (including extensions) for the corporations tax return for the taxable year in which the temporary cessation begins. (3) Period disregard in effect The period of temporary use under paragraph (1) continues until the earlier of the date of [1] which (A) the electing corporation abandons its intention to resume operations of the vessel in the United States foreign trade, or (B) the electing corporation resumes operation of the vessel in the United States foreign trade. (4) No disregard if domestic trade use exceeds 30 days Paragraph (1) shall not apply to any qualifying vessel which is operated in the United States domestic trade for more than 30 days during the taxable year. (g) Great Lakes domestic shipping to not disqualify vessel (1) In general If the electing corporation elects (at such time and in such manner as the Secretary may require) to apply this subsection for any taxable year to any qualifying vessel which is used in qualified zone domestic trade during the taxable year (A) solely for purposes of subsection (a)(4), such use shall be treated as use in United States foreign trade (and not as use in United States domestic trade), and (B) subsection (f) shall not apply with respect to such vessel for such taxable year. (2) Effect of temporarily operating vessel in United States domestic trade In the case of a qualifying vessel to which this subsection applies (A) In general An electing corporation shall be treated as using such vessel in qualified zone domestic trade during any period of temporary use in the United States domestic trade (other than qualified zone domestic trade) if the electing corporation gives timely notice to the Secretary stating (i) that it temporarily operates or has operated in the United States domestic trade (other than qualified zone domestic trade) a qualifying vessel which had been used in the United States foreign trade or qualified zone domestic trade, and (ii) its intention to resume operation of the vessel in the United States foreign trade or qualified zone domestic trade. (B) Notice Notice shall be deemed timely if given not later than the due date (including extensions) for the corporations tax return for the taxable year in which the temporary cessation begins. (C) Period disregard in effect

The period of temporary use under subparagraph (A) continues until the earlier of the date of which (i) the electing corporation abandons its intention to resume operations of the vessel in the United States foreign trade or qualified zone domestic trade, or (ii) the electing corporation resumes operation of the vessel in the United States foreign trade or qualified zone domestic trade. (D) No disregard if domestic trade use exceeds 30 days Subparagraph (A) shall not apply to any qualifying vessel which is operated in the United States domestic trade (other than qualified zone domestic trade) for more than 30 days during the taxable year. (3) Allocation of income and deductions to qualifying shipping activities In the case of a qualifying vessel to which this subsection applies, the Secretary shall prescribe rules for the proper allocation of income, expenses, losses, and deductions between the qualified shipping activities and the other activities of such vessel. (4) Qualified zone domestic trade For purposes of this subsection (A) In general The term qualified zone domestic trade means the transportation of goods or passengers between places in the qualified zone if such transportation is in the United States domestic trade. (B) Qualified zone The term qualified zone means the Great Lakes Waterway and the St. Lawrence Seaway. (h) Regulations The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the purposes of this section.

[1] So in original.

1356. Qualifying shipping activities


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(a) Qualifying shipping activities For purposes of this subchapter, the term qualifying shipping activities means (1) core qualifying activities, (2) qualifying secondary activities, and (3) qualifying incidental activities. (b) Core qualifying activities For purposes of this subchapter, the term core qualifying activities means activities in operating qualifying vessels in United States foreign trade. (c) Qualifying secondary activities For purposes of this section (1) In general The term qualifying secondary activities means secondary activities but only to the extent that, without regard to this subchapter, the gross income derived by such corporation from such activities does not exceed 20 percent of the gross income derived by the corporation from its core qualifying activities. (2) Secondary activities The term secondary activities means (A) the active management or operation of vessels other than qualifying vessels in the United States foreign trade, (B) the provision of vessel, barge, container, or cargo-related facilities or services to any person,

(C) other activities of the electing corporation and other members of its electing group that are an integral part of its business of operating qualifying vessels in United States foreign trade, including (i) ownership or operation of barges, containers, chassis, and other equipment that are the complement of, or used in connection with, a qualifying vessel in United States foreign trade, (ii) the inland haulage of cargo shipped, or to be shipped, on qualifying vessels in United States foreign trade, and (iii) the provision of terminal, maintenance, repair, logistical, or other vessel, barge, container, or cargo-related services that are an integral part of operating qualifying vessels in United States foreign trade, and (D) such other activities as may be prescribed by the Secretary pursuant to regulations. Such term shall not include any core qualifying activities. (d) Qualifying incidental activities For purposes of this section, the term qualified incidental activities means shipping-related activities if (1) they are incidental to the corporations core qualifying activities, (2) they are not qualifying secondary activities, and (3) without regard to this subchapter, the gross income derived by such corporation from such activities does not exceed 0.1 percent of the corporations gross income from its core qualifying activities. (e) Application of gross income tests in case of electing group In the case of an electing group, subsections (c)(1) and (d)(3) shall be applied as if such group were 1 entity, and the limitations under such subsections shall be allocated among the corporations in such group.

1357. Items not subject to regular tax; depreciation; interest


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(a) Exclusion from gross income Gross income of an electing corporation shall not include its income from qualifying shipping activities. (b) Electing group member Gross income of a corporation (other than an electing corporation) which is a member of an electing group shall not include its income from qualifying shipping activities conducted by such member. (c) Denial of losses, deductions, and credits (1) General rule Subject to paragraph (2), each item of loss, deduction (other than for interest expense), or credit of any taxpayer with respect to any activity the income from which is excluded from gross income under this section shall be disallowed. (2) Depreciation (A) In general Notwithstanding paragraph (1), the adjusted basis (for purposes of determining gain) of any qualifying vessel shall be determined as if the deduction for depreciation had been allowed. (B) Method (i) In general Except as provided in clause (ii), the straight-line method of depreciation shall apply to qualifying vessels the income from operation of which is excluded from gross income under this section. (ii) Exception Clause (i) shall not apply to any qualifying vessel which is subject to a charter entered into before the date of the enactment of this subchapter. (3) Interest (A) In general Except as provided in subparagraph (B), the interest expense of an electing corporation shall be disallowed in the ratio that the fair market value of such corporations qualifying vessels bears to the fair market value of such corporations total assets.

(B) Electing group In the case of a corporation which is a member of an electing group, the interest expense of such corporation shall be disallowed in the ratio that the fair market value of such corporations qualifying vessels bears to the fair market value of the electing groups total assets.

1358. Allocation of credits, income, and deductions


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(a) Qualifying shipping activities For purposes of this chapter, the qualifying shipping activities of an electing corporation shall be treated as a separate trade or business activity distinct from all other activities conducted by such corporation. (b) Exclusion of credits or deductions (1) No deduction shall be allowed against the notional shipping income of an electing corporation, and no credit shall be allowed against the tax imposed by section 1352 (a)(2).[1] (2) No deduction shall be allowed for any net operating loss attributable to the qualifying shipping activities of any person to the extent that such loss is carried forward by such person from a taxable year preceding the first taxable year for which such person was an electing corporation. (c) Transactions not at arms length Section 482 applies in accordance with this subsection to a transaction or series of transactions (1) as between an electing corporation and another person, or (2) as between an [2] persons qualifying shipping activities and other activities carried on by it.

[1] So in original. Probably should be section 1352(2).. [2] So in original.

1359. Disposition of qualifying vessels


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(a) In general If any qualifying vessel operator sells or disposes of any qualifying vessel in an otherwise taxable transaction, at the election of such operator, no gain shall be recognized if any replacement qualifying vessel is acquired during the period specified in subsection (b), except to the extent that the amount realized upon such sale or disposition exceeds the cost of the replacement qualifying vessel. (b) Period within which property must be replaced The period referred to in subsection (a) shall be the period beginning one year prior to the disposition of the qualifying vessel and ending (1) 3 years after the close of the first taxable year in which the gain is realized, or (2) subject to such terms and conditions as may be specified by the Secretary, on such later date as the Secretary may designate on application by the taxpayer. Such application shall be made at such time and in such manner as the Secretary may by regulations prescribe. (c) Application of section to noncorporate operators

For purposes of this section, the term qualifying vessel operator includes any person who would be a qualifying vessel operator were such person a corporation. (d) Time for assessment of deficiency attributable to gain If a qualifying vessel operator has made the election provided in subsection (a), then (1) the statutory period for the assessment of any deficiency, for any taxable year in which any part of the gain is realized, attributable to such gain shall not expire prior to the expiration of 3 years from the date the Secretary is notified by such operator (in such manner as the Secretary may by regulations prescribe) of the replacement qualifying vessel or of an intention not to replace, and (2) such deficiency may be assessed before the expiration of such 3-year period notwithstanding the provisions of section 6212 (c) or the provisions of any other law or rule of law which would otherwise prevent such assessment. (e) Basis of replacement qualifying vessel In the case of any replacement qualifying vessel purchased by the qualifying vessel operator which resulted in the nonrecognition of any part of the gain realized as the result of a sale or other disposition of a qualifying vessel, the basis shall be the cost of the replacement qualifying vessel decreased in the amount of the gain not so recognized; and if the property purchased consists of more than one piece of property, the basis determined under this sentence shall be allocated to the purchased properties in proportion to their respective costs.

Subchapter STax Treatment of S Corporations and Their Shareholders


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PART IIN GENERAL ( 13611363) PART IITAX TREATMENT OF SHAREHOLDERS ( 13661368) PART IIISPECIAL RULES ( 13711375) PART IVDEFINITIONS; MISCELLANEOUS ( 13771379)

PART IIN GENERAL


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1361. S corporation defined 1362. Election; revocation; termination 1363. Effect of election on corporation

1361. S corporation defined


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(a) S corporation defined (1) In general

For purposes of this title, the term S corporation means, with respect to any taxable year, a small business corporation for which an election under section 1362 (a) is in effect for such year. (2) C corporation For purposes of this title, the term C corporation means, with respect to any taxable year, a corporation which is not an S corporation for such year. (b) Small business corporation (1) In general For purposes of this subchapter, the term small business corporation means a domestic corporation which is not an ineligible corporation and which does not (A) have more than 100 shareholders, (B) have as a shareholder a person (other than an estate, a trust described in subsection (c) (2), or an organization described in subsection (c)(6)) who is not an individual, (C) have a nonresident alien as a shareholder, and (D) have more than 1 class of stock. (2) Ineligible corporation defined For purposes of paragraph (1), the term ineligible corporation means any corporation which is (A) a financial institution which uses the reserve method of accounting for bad debts described in section 585, (B) an insurance company subject to tax under subchapter L, (C) a corporation to which an election under section 936 applies, or (D) a DISC or former DISC. (3) Treatment of certain wholly owned subsidiaries (A) In general Except as provided in regulations prescribed by the Secretary, for purposes of this title (i) a corporation which is a qualified subchapter S subsidiary shall not be treated as a separate corporation, and (ii) all assets, liabilities, and items of income, deduction, and credit of a qualified subchapter S subsidiary shall be treated as assets, liabilities, and such items (as the case may be) of the S corporation. (B) Qualified subchapter S subsidiary For purposes of this paragraph, the term qualified subchapter S subsidiary means any domestic corporation which is not an ineligible corporation (as defined in paragraph (2)), if (i) 100 percent of the stock of such corporation is held by the S corporation, and (ii) the S corporation elects to treat such corporation as a qualified subchapter S subsidiary. (C) Treatment of terminations of qualified subchapter S subsidiary status (i) In general For purposes of this title, if any corporation which was a qualified subchapter S subsidiary ceases to meet the requirements of subparagraph (B), such corporation shall be treated as a new corporation acquiring all of its assets (and assuming all of its liabilities) immediately before such cessation from the S corporation in exchange for its stock. (ii) Termination by reason of sale of stock If the failure to meet the requirements of subparagraph (B) is by reason of the sale of stock of a corporation which is a qualified subchapter S subsidiary, the sale of such stock shall be treated as if (I) the sale were a sale of an undivided interest in the assets of such corporation (based on the percentage of the corporations stock sold), and (II) the sale were followed by an acquisition by such corporation of all of its assets (and the assumption by such corporation of all of its liabilities) in a transaction to which section 351 applies. (D) Election after termination If a corporations status as a qualified subchapter S subsidiary terminates, such corporation (and any successor corporation) shall not be eligible to make (i) an election under subparagraph (B)(ii) to be treated as a qualified subchapter S subsidiary, or (ii) an election under section 1362 (a) to be treated as an S corporation, before its 5th taxable year which begins after the 1st taxable year for which such termination was effective, unless the Secretary consents to such election. (E) Information returns

Except to the extent provided by the Secretary, this paragraph shall not apply to part III of subchapter A of chapter 61 (relating to information returns). (c) Special rules for applying subsection (b) (1) Members of a family treated as 1 shareholder (A) In general For purposes of subsection (b)(1)(A), there shall be treated as one shareholder (i) a husband and wife (and their estates), and (ii) all members of a family (and their estates). (B) Members of a family For purposes of this paragraph (i) In general The term members of a family means a common ancestor, any lineal descendant of such common ancestor, and any spouse or former spouse of such common ancestor or any such lineal descendant. (ii) Common ancestor An individual shall not be considered to be a common ancestor if, on the applicable date, the individual is more than 6 generations removed from the youngest generation of shareholders who would (but for this subparagraph) be members of the family. For purposes of the preceding sentence, a spouse (or former spouse) shall be treated as being of the same generation as the individual to whom such spouse is (or was) married. (iii) Applicable date The term applicable date means the latest of (I) the date the election under section 1362 (a) is made, (II) the earliest date that an individual described in clause (i) holds stock in the S corporation, or (III) October 22, 2004. (C) Effect of adoption, etc. Any legally adopted child of an individual, any child who is lawfully placed with an individual for legal adoption by the individual, and any eligible foster child of an individual (within the meaning of section152 (f)(1)(C)), shall be treated as a child of such individual by blood. (2) Certain trusts permitted as shareholders (A) In general For purposes of subsection (b)(1)(B), the following trusts may be shareholders: (i) A trust all of which is treated (under subpart E of part I of subchapter J of this chapter) as owned by an individual who is a citizen or resident of the United States. (ii) A trust which was described in clause (i) immediately before the death of the deemed owner and which continues in existence after such death, but only for the 2-year period beginning on the day of the deemed owners death. (iii) A trust with respect to stock transferred to it pursuant to the terms of a will, but only for the 2-year period beginning on the day on which such stock is transferred to it. (iv) A trust created primarily to exercise the voting power of stock transferred to it. (v) An electing small business trust. (vi) In the case of a corporation which is a bank (as defined in section 581) or a depository institution holding company (as defined in section 3(w)(1) of the Federal Deposit Insurance Act (12U.S.C. 1813 (w)(1)), a trust which constitutes an individual retirement account under section 408 (a), including one designated as a Roth IRA under section 408A, but only to the extent of the stock held by such trust in such bank or company as of the date of the enactment of this clause. This subparagraph shall not apply to any foreign trust. (B) Treatment as shareholders For purposes of subsection (b)(1) (i) In the case of a trust described in clause (i) of subparagraph (A), the deemed owner shall be treated as the shareholder. (ii) In the case of a trust described in clause (ii) of subparagraph (A), the estate of the deemed owner shall be treated as the shareholder. (iii) In the case of a trust described in clause (iii) of subparagraph (A), the estate of the testator shall be treated as the shareholder. (iv) In the case of a trust described in clause (iv) of subparagraph (A), each beneficiary of the trust shall be treated as a shareholder. (v) In the case of a trust described in clause (v) of subparagraph (A), each potential current beneficiary of such trust shall be treated as a shareholder; except that, if for any period there

is no potential current beneficiary of such trust, such trust shall be treated as the shareholder during such period. (vi) In the case of a trust described in clause (vi) of subparagraph (A), the individual for whose benefit the trust was created shall be treated as a shareholder. (3) Estate of individual in bankruptcy may be shareholder For purposes of subsection (b)(1)(B), the term estate includes the estate of an individual in a case under title 11 of the United States Code. (4) Differences in common stock voting rights disregarded For purposes of subsection (b)(1)(D), a corporation shall not be treated as having more than 1 class of stock solely because there are differences in voting rights among the shares of common stock. (5) Straight debt safe harbor (A) In general For purposes of subsection (b)(1)(D), straight debt shall not be treated as a second class of stock. (B) Straight debt defined For purposes of this paragraph, the term straight debt means any written unconditional promise to pay on demand or on a specified date a sum certain in money if (i) the interest rate (and interest payment dates) are not contingent on profits, the borrowers discretion, or similar factors, (ii) there is no convertibility (directly or indirectly) into stock, and (iii) the creditor is an individual (other than a nonresident alien), an estate, a trust described in paragraph (2), or a person which is actively and regularly engaged in the business of lending money. (C) Regulations The Secretary shall prescribe such regulations as may be necessary or appropriate to provide for the proper treatment of straight debt under this subchapter and for the coordination of such treatment with other provisions of this title. (6) Certain exempt organizations permitted as shareholders For purposes of subsection (b)(1)(B), an organization which is (A) described in section 401 (a) or 501 (c)(3), and (B) exempt from taxation under section 501 (a), may be a shareholder in an S corporation. (d) Special rule for qualified subchapter S trust (1) In general In the case of a qualified subchapter S trust with respect to which a beneficiary makes an election under paragraph (2) (A) such trust shall be treated as a trust described in subsection (c)(2)(A)(i), (B) for purposes of section 678 (a), the beneficiary of such trust shall be treated as the owner of that portion of the trust which consists of stock in an S corporation with respect to which the election under paragraph (2) is made, and (C) for purposes of applying sections 465 and 469 to the beneficiary of the trust, the disposition of the S corporation stock by the trust shall be treated as a disposition by such beneficiary. (2) Election (A) In general A beneficiary of a qualified subchapter S trust (or his legal representative) may elect to have this subsection apply. (B) Manner and time of election (i) Separate election with respect to each corporation An election under this paragraph shall be made separately with respect to each corporation the stock of which is held by the trust. (ii) Elections with respect to successive income beneficiaries If there is an election under this paragraph with respect to any beneficiary, an election under this paragraph shall be treated as made by each successive beneficiary unless such beneficiary affirmatively refuses to consent to such election. (iii) Time, manner, and form of election Any election, or refusal, under this paragraph shall be made in such manner and form, and at such time, as the Secretary may prescribe. (C) Election irrevocable

An election under this paragraph, once made, may be revoked only with the consent of the Secretary. (D) Grace period An election under this paragraph shall be effective up to 15 days and 2 months before the date of the election. (3) Qualified subchapter S trust For purposes of this subsection, the term qualified subchapter S trust means a trust (A) the terms of which require that (i) during the life of the current income beneficiary, there shall be only 1 income beneficiary of the trust, (ii) any corpus distributed during the life of the current income beneficiary may be distributed only to such beneficiary, (iii) the income interest of the current income beneficiary in the trust shall terminate on the earlier of such beneficiarys death or the termination of the trust, and (iv) upon the termination of the trust during the life of the current income beneficiary, the trust shall distribute all of its assets to such beneficiary, and (B) all of the income (within the meaning of section 643(b)) of which is distributed (or required to be distributed) currently to 1 individual who is a citizen or resident of the United States. A substantially separate and independent share of a trust within the meaning of section 663 (c) shall be treated as a separate trust for purposes of this subsection and subsection (c). (4) Trust ceasing to be qualified (A) Failure to meet requirements of paragraph (3)(A) If a qualified subchapter S trust ceases to meet any requirement of paragraph (3)(A), the provisions of this subsection shall not apply to such trust as of the date it ceases to meet such requirement. (B) Failure to meet requirements of paragraph (3)(B) If any qualified subchapter S trust ceases to meet any requirement of paragraph (3)(B) but continues to meet the requirements of paragraph (3)(A), the provisions of this subsection shall not apply to such trust as of the first day of the first taxable year beginning after the first taxable year for which it failed to meet the requirements of paragraph (3)(B). (e) Electing small business trust defined (1) Electing small business trust For purposes of this section (A) In general Except as provided in subparagraph (B), the term electing small business trust means any trust if (i) such trust does not have as a beneficiary any person other than (I) an individual, (II) an estate, (III) an organization described in paragraph (2), (3), (4), or (5) of section 170 (c), or (IV) an organization described in section 170 (c)(1) which holds a contingent interest in such trust and is not a potential current beneficiary, (ii) no interest in such trust was acquired by purchase, and (iii) an election under this subsection applies to such trust. (B) Certain trusts not eligible The term electing small business trust shall not include (i) any qualified subchapter S trust (as defined in subsection (d)(3)) if an election under subsection (d)(2) applies to any corporation the stock of which is held by such trust, (ii) any trust exempt from tax under this subtitle, and (iii) any charitable remainder annuity trust or charitable remainder unitrust (as defined in section 664 (d)). (C) Purchase For purposes of subparagraph (A), the term purchase means any acquisition if the basis of the property acquired is determined under section 1012. (2) Potential current beneficiary

For purposes of this section, the term potential current beneficiary means, with respect to any period, any person who at any time during such period is entitled to, or at the discretion of any person may receive, a distribution from the principal or income of the trust (determined without regard to any power of appointment to the extent such power remains unexercised at the end of such period). If a trust disposes of all of the stock which it holds in an S corporation, then, with respect to such corporation, the term potential current beneficiary does not include any person who first met the requirements of the preceding sentence during the 1-year period ending on the date of such disposition. (3) Election An election under this subsection shall be made by the trustee. Any such election shall apply to the taxable year of the trust for which made and all subsequent taxable years of such trust unless revoked with the consent of the Secretary. (4) Cross reference For special treatment of electing small business trusts, see section641 (c). (f) Restricted bank director stock (1) In general Restricted bank director stock shall not be taken into account as outstanding stock of the S corporation in applying this subchapter (other than section 1368 (f)). (2) Restricted bank director stock For purposes of this subsection, the term restricted bank director stock means stock in a bank (as defined in section 581) or a depository institution holding company (as defined in section 3(w)(1) of the Federal Deposit Insurance Act (12 U.S.C. 1813 (w)(1)),[1] if such stock (A) is required to be held by an individual under applicable Federal or State law in order to permit such individual to serve as a director, and (B) is subject to an agreement with such bank or company (or a corporation which controls (within the meaning of section 368 (c)) such bank or company) pursuant to which the holder is required to sell back such stock (at the same price as the individual acquired such stock) upon ceasing to hold the office of director. (3) Cross reference For treatment of certain distributions with respect to restricted bank director stock, see section 1368 (f). (g) Special rule for bank required to change from the reserve method of accounting on becoming S corporation In the case of a bank which changes from the reserve method of accounting for bad debts described in section 585 or 593 for its first taxable year for which an election under section 1362 (a) is in effect, the bank may elect to take into account any adjustments under section 481 by reason of such change for the taxable year immediately preceding such first taxable year.

[1] So in original. Another closing parenthesis probably should precede the comma.

1362. Election; revocation; termination


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(a) Election (1) In general Except as provided in subsection (g), a small business corporation may elect, in accordance with the provisions of this section, to be an S corporation. (2) All shareholders must consent to election An election under this subsection shall be valid only if all persons who are shareholders in such corporation on the day on which such election is made consent to such election. (b) When made (1) In general

An election under subsection (a) may be made by a small business corporation for any taxable year (A) at any time during the preceding taxable year, or (B) at any time during the taxable year and on or before the 15th day of the 3d month of the taxable year. (2) Certain elections made during 1st 21/2 months treated as made for next taxable year If (A) an election under subsection (a) is made for any taxable year during such year and on or before the 15th day of the 3d month of such year, but (B) either (i) on 1 or more days in such taxable year before the day on which the election was made the corporation did not meet the requirements of subsection (b) of section 1361, or (ii) 1 or more of the persons who held stock in the corporation during such taxable year and before the election was made did not consent to the election, then such election shall be treated as made for the following taxable year. (3) Election made after 1st 21/2 months treated as made for following taxable year If (A) a small business corporation makes an election under subsection (a) for any taxable year, and (B) such election is made after the 15th day of the 3d month of the taxable year and on or before the 15th day of the 3rd month of the following taxable year, then such election shall be treated as made for the following taxable year. (4) Taxable years of 21/2 months or less For purposes of this subsection, an election for a taxable year made not later than 2 months and 15 days after the first day of the taxable year shall be treated as timely made during such year. (5) Authority to treat late elections, etc., as timely If (A) an election under subsection (a) is made for any taxable year (determined without regard to paragraph (3)) after the date prescribed by this subsection for making such election for such taxable year or no such election is made for any taxable year, and (B) the Secretary determines that there was reasonable cause for the failure to timely make such election, the Secretary may treat such an election as timely made for such taxable year (and paragraph (3) shall not apply). (c) Years for which effective An election under subsection (a) shall be effective for the taxable year of the corporation for which it is made and for all succeeding taxable years of the corporation, until such election is terminated under subsection (d). (d) Termination (1) By revocation (A) In general An election under subsection (a) may be terminated by revocation. (B) More than one-half of shares must consent to revocation An election may be revoked only if shareholders holding more than one-half of the shares of stock of the corporation on the day on which the revocation is made consent to the revocation. (C) When effective Except as provided in subparagraph (D) (i) a revocation made during the taxable year and on or before the 15th day of the 3d month thereof shall be effective on the 1st day of such taxable year, and (ii) a revocation made during the taxable year but after such 15th day shall be effective on the 1st day of the following taxable year. (D) Revocation may specify prospective date If the revocation specifies a date for revocation which is on or after the day on which the revocation is made, the revocation shall be effective on and after the date so specified. (2) By corporation ceasing to be small business corporation

(A) In general An election under subsection (a) shall be terminated whenever (at any time on or after the 1st day of the 1st taxable year for which the corporation is an S corporation) such corporation ceases to be a small business corporation. (B) When effective Any termination under this paragraph shall be effective on and after the date of cessation. (3) Where passive investment income exceeds 25 percent of gross receipts for 3 consecutive taxable years and corporation has accumulated earnings and profits (A) Termination (i) In general An election under subsection (a) shall be terminated whenever the corporation (I) has accumulated earnings and profits at the close of each of 3 consecutive taxable years, and (II) has gross receipts for each of such taxable years more than 25 percent of which are passive investment income. (ii) When effective Any termination under this paragraph shall be effective on and after the first day of the first taxable year beginning after the third consecutive taxable year referred to in clause (i). (iii) Years taken into account A prior taxable year shall not be taken into account under clause (i) unless (I) such taxable year began after December 31, 1981, and (II) the corporation was an S corporation for such taxable year. (B) Gross receipts from the sales of certain assets For purposes of this paragraph (i) in the case of dispositions of capital assets (other than stock and securities), gross receipts from such dispositions shall be taken into account only to the extent of the capital gain net income therefrom, and (ii) in the case of sales or exchanges of stock or securities, gross receipts shall be taken into account only to the extent of the gains therefrom. (C) Passive investment income defined (i) In general Except as otherwise provided in this subparagraph, the term passive investment income means gross receipts derived from royalties, rents, dividends, interest, and annuities. (ii) Exception for interest on notes from sales of inventory The term passive investment income shall not include interest on any obligation acquired in the ordinary course of the corporations trade or business from its sale of property described in section1221 (a)(1). (iii) Treatment of certain lending or finance companies If the S corporation meets the requirements of section 542 (c)(6) for the taxable year, the term passive investment income shall not include gross receipts for the taxable year which are derived directly from the active and regular conduct of a lending or finance business (as defined in section 542 (d) (1)). (iv) Treatment of certain dividends If an S corporation holds stock in a C corporation meeting the requirements of section 1504(a)(2), the term passive investment income shall not include dividends from such C corporation to the extent such dividends are attributable to the earnings and profits of such C corporation derived from the active conduct of a trade or business. (v) Exception for banks, etc. In the case of a bank (as defined in section 581) or a depository institution holding company (as defined in section 3(w)(1) of the Federal Deposit Insurance Act (12U.S.C. 1813 (w)(1)),[1] the term passive investment income shall not include (I) interest income earned by such bank or company, or (II) dividends on assets required to be held by such bank or company, including stock in the Federal Reserve Bank, the Federal Home Loan Bank, or the Federal Agricultural Mortgage Bank or participation certificates issued by a Federal Intermediate Credit Bank. (e) Treatment of S termination year (1) In general In the case of an S termination year, for purposes of this title (A) S short year

The portion of such year ending before the 1st day for which the termination is effective shall be treated as a short taxable year for which the corporation is an S corporation. (B) C short year The portion of such year beginning on such 1st day shall be treated as a short taxable year for which the corporation is a C corporation. (2) Pro rata allocation Except as provided in paragraph (3) and subparagraphs (C) and (D) of paragraph (6), the determination of which items are to be taken into account for each of the short taxable years referred to in paragraph (1) shall be made (A) first by determining for the S termination year (i) the amount of each of the items of income, loss, deduction, or credit described in section 1366 (a)(1)(A), and (ii) the amount of the nonseparately computed income or loss, and (B) then by assigning an equal portion of each amount determined under subparagraph (A) to each day of the S termination year. (3) Election to have items assigned to each short taxable year under normal tax accounting rules (A) In general A corporation may elect to have paragraph (2) not apply. (B) Shareholders must consent to election An election under this subsection shall be valid only if all persons who are shareholders in the corporation at any time during the S short year and all persons who are shareholders in the corporation on the first day of the C short year consent to such election. (4) S termination year For purposes of this subsection, the term S termination year means any taxable year of a corporation (determined without regard to this subsection) in which a termination of an election made under subsection (a) takes effect (other than on the 1st day thereof). (5) Tax for C short year determined on annualized basis (A) In general The taxable income for the short year described in subparagraph (B) of paragraph (1) shall be placed on an annual basis by multiplying the taxable income for such short year by the number of days in the S termination year and by dividing the result by the number of days in the short year. The tax shall be the same part of the tax computed on the annual basis as the number of days in such short year is of the number of days in the S termination year. (B) Section 443 (d)(2) to apply Subsection (d) of section 443 shall apply to the short taxable year described in subparagraph (B) of paragraph (1). (6) Other special rules For purposes of this title (A) Short years treated as 1 year for carryover purposes The short taxable year described in subparagraph (A) of paragraph (1) shall not be taken into account for purposes of determining the number of taxable years to which any item may be carried back or carried forward by the corporation. (B) Due date for S year The due date for filing the return for the short taxable year described in subparagraph (A) of paragraph (1) shall be the same as the due date for filing the return for the short taxable year described in subparagraph (B) of paragraph (1) (including extensions thereof). (C) Paragraph (2) not to apply to items resulting from section 338 Paragraph (2) shall not apply with respect to any item resulting from the application of section 338. (D) Pro rata allocation for S termination year not to apply if 50-percent change in ownership Paragraph (2) shall not apply to an S termination year if there is a sale or exchange of 50 percent or more of the stock in such corporation during such year. (f) Inadvertent invalid elections or terminations If (1) an election under subsection (a) or section 1361 (b)(3)(B)(ii) by any corporation

(A) was not effective for the taxable year for which made (determined without regard to subsection (b)(2)) by reason of a failure to meet the requirements of section 1361 (b) or to obtain shareholder consents, or (B) was terminated under paragraph (2) or (3) of subsection (d) or section 1361 (b)(3)(C), (2) the Secretary determines that the circumstances resulting in such ineffectiveness or termination were inadvertent, (3) no later than a reasonable period of time after discovery of the circumstances resulting in such ineffectiveness or termination, steps were taken (A) so that the corporation for which the election was made or the termination occurred is a small business corporation or a qualified subchapter S subsidiary, as the case may be, or (B) to acquire the required shareholder consents, and (4) the corporation for which the election was made or the termination occurred, and each person who was a shareholder in such corporation at any time during the period specified pursuant to this subsection, agrees to make such adjustments (consistent with the treatment of such corporation as an S corporation or a qualified subchapter S subsidiary, as the case may be) as may be required by the Secretary with respect to such period, then, notwithstanding the circumstances resulting in such ineffectiveness or termination, such corporation shall be treated as an S corporation or a qualified subchapter S subsidiary, as the case may be [2] during the period specified by the Secretary. (g) Election after termination If a small business corporation has made an election under subsection (a) and if such election has been terminated under subsection (d), such corporation (and any successor corporation) shall not be eligible to make an election under subsection (a) for any taxable year before its 5th taxable year which begins after the 1st taxable year for which such termination is effective, unless the Secretary consents to such election.

[1] So in original. Another closing parenthesis probably should precede the comma. [2] So in original. Probably should be followed by a comma.

1363. Effect of election on corporation


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(a) General rule Except as otherwise provided in this subchapter, an S corporation shall not be subject to the taxes imposed by this chapter. (b) Computation of corporations taxable income The taxable income of an S corporation shall be computed in the same manner as in the case of an individual, except that (1) the items described in section 1366 (a)(1)(A) shall be separately stated, (2) the deductions referred to in section 703 (a)(2) shall not be allowed to the corporation, (3) section 248 shall apply, and (4) section 291 shall apply if the S corporation (or any predecessor) was a C corporation for any of the 3 immediately preceding taxable years. (c) Elections of the S corporation (1) In general Except as provided in paragraph (2), any election affecting the computation of items derived from an S corporation shall be made by the corporation. (2) Exceptions In the case of an S corporation, elections under the following provisions shall be made by each shareholder separately (A) section 617 (relating to deduction and recapture of certain mining exploration expenditures), and (B) section 901 (relating to taxes of foreign countries and possessions of the United States).

(d) Recapture of LIFO benefits (1) In general If (A) an S corporation was a C corporation for the last taxable year before the first taxable year for which the election under section 1362(a) was effective, and (B) the corporation inventoried goods under the LIFO method for such last taxable year, the LIFO recapture amount shall be included in the gross income of the corporation for such last taxable year (and appropriate adjustments to the basis of inventory shall be made to take into account the amount included in gross income under this paragraph). (2) Additional tax payable in installments (A) In general Any increase in the tax imposed by this chapter by reason of this subsection shall be payable in 4 equal installments. (B) Date for payment of installments The first installment under subparagraph (A) shall be paid on or before the due date (determined without regard to extensions) for the return of the tax imposed by this chapter for the last taxable year for which the corporation was a C corporation and the 3 succeeding installments shall be paid on or before the due date (as so determined) for the corporations return for the 3 succeeding taxable years. (C) No interest for period of extension Notwithstanding section 6601 (b), for purposes of section 6601, the date prescribed for the payment of each installment under this paragraph shall be determined under this paragraph. (3) LIFO recapture amount For purposes of this subsection, the term LIFO recapture amount means the amount (if any) by which (A) the inventory amount of the inventory asset under the first-in, first-out method authorized by section 471, exceeds (B) the inventory amount of such assets under the LIFO method. For purposes of the preceding sentence, inventory amounts shall be determined as of the close of the last taxable year referred to in paragraph (1). (4) Other definitions For purposes of this subsection (A) LIFO method The term LIFO method means the method authorized by section472. (B) Inventory assets The term inventory assets means stock in trade of the corporation, or other property of a kind which would properly be included in the inventory of the corporation if on hand at the close of the taxable year. (C) Method of determining inventory amount The inventory amount of assets under a method authorized by section 471 shall be determined (i) if the corporation uses the retail method of valuing inventories under section 472, by using such method, or (ii) if clause (i) does not apply, by using cost or market, whichever is lower. (D) Not treated as member of affiliated group Except as provided in regulations, the corporation referred to in paragraph (1) shall not be treated as a member of an affiliated group with respect to the amount included in gross income under paragraph (1). (5) Special rule Sections 1367 (a)(2)(D) and 1371 (c)(1) shall not apply with respect to any increase in the tax imposed by reason of this subsection.

PART IITAX TREATMENT OF SHAREHOLDERS


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1366. Pass-thru of items to shareholders 1367. Adjustments to basis of stock of shareholders, etc. 1368. Distributions

1366. Pass-thru of items to shareholders


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(a) Determination of shareholders tax liability (1) In general In determining the tax under this chapter of a shareholder for the shareholders taxable year in which the taxable year of the S corporation ends (or for the final taxable year of a shareholder who dies, or of a trust or estate which terminates, before the end of the corporations taxable year), there shall be taken into account the shareholders pro rata share of the corporations (A) items of income (including tax-exempt income), loss, deduction, or credit the separate treatment of which could affect the liability for tax of any shareholder, and (B) nonseparately computed income or loss. For purposes of the preceding sentence, the items referred to in subparagraph (A) shall include amounts described in paragraph (4) or (6) of section 702 (a). (2) Nonseparately computed income or loss defined For purposes of this subchapter, the term nonseparately computed income or loss means gross income minus the deductions allowed to the corporation under this chapter, determined by excluding all items described in paragraph (1)(A). (b) Character passed thru The character of any item included in a shareholders pro rata share under paragraph (1) of subsection (a) shall be determined as if such item were realized directly from the source from which realized by the corporation, or incurred in the same manner as incurred by the corporation. (c) Gross income of a shareholder In any case where it is necessary to determine the gross income of a shareholder for purposes of this title, such gross income shall include the shareholders pro rata share of the gross income of the corporation. (d) Special rules for losses and deductions (1) Cannot exceed shareholders basis in stock and debt The aggregate amount of losses and deductions taken into account by a shareholder under subsection (a) for any taxable year shall not exceed the sum of (A) the adjusted basis of the shareholders stock in the S corporation (determined with regard to paragraphs (1) and (2)(A) of section 1367(a) for the taxable year), and (B) the shareholders adjusted basis of any indebtedness of the S corporation to the shareholder (determined without regard to any adjustment under paragraph (2) of section 1367 (b) for the taxable year). (2) Indefinite carryover of disallowed losses and deductions (A) In general Except as provided in subparagraph (B), any loss or deduction which is disallowed for any taxable year by reason of paragraph (1) shall be treated as incurred by the corporation in the succeeding taxable year with respect to that shareholder. (B) Transfers of stock between spouses or incident to divorce In the case of any transfer described in section 1041(a) of stock of an S corporation, any loss or deduction described in subparagraph (A) with respect such stock shall be treated as incurred by the corporation in the succeeding taxable year with respect to the transferee. (3) Carryover of disallowed losses and deductions to post-termination transition period

(A) In general If for the last taxable year of a corporation for which it was an S corporation a loss or deduction was disallowed by reason of paragraph (1), such loss or deduction shall be treated as incurred by the shareholder on the last day of any post-termination transition period. (B) Cannot exceed shareholders basis in stock The aggregate amount of losses and deductions taken into account by a shareholder under subparagraph (A) shall not exceed the adjusted basis of the shareholders stock in the corporation (determined at the close of the last day of the post-termination transition period and without regard to this paragraph). (C) Adjustment in basis of stock The shareholders basis in the stock of the corporation shall be reduced by the amount allowed as a deduction by reason of this paragraph. (D) At-risk limitations To the extent that any increase in adjusted basis described in subparagraph (B) would have increased the shareholders amount at risk under section 465 if such increase had occurred on the day preceding the commencement of the post-termination transition period, rules similar to the rules described in subparagraphs (A) through (C) shall apply to any losses disallowed by reason of section465 (a). (4) Application of limitation on charitable contributions In the case of any charitable contribution of property to which the second sentence of section 1367 (a)(2) applies, paragraph (1) shall not apply to the extent of the excess (if any) of (A) the shareholders pro rata share of such contribution, over (B) the shareholders pro rata share of the adjusted basis of such property. (e) Treatment of family group If an individual who is a member of the family (within the meaning of section 704(e)(3)) of one or more shareholders of an S corporation renders services for the corporation or furnishes capital to the corporation without receiving reasonable compensation therefor, the Secretary shall make such adjustments in the items taken into account by such individual and such shareholders as may be necessary in order to reflect the value of such services or capital. (f) Special rules (1) Subsection (a) not to apply to credit allowable under section 34 Subsection (a) shall not apply with respect to any credit allowable under section 34 (relating to certain uses of gasoline and special fuels). (2) Treatment of tax imposed on built-in gains If any tax is imposed under section 1374 for any taxable year on an S corporation, for purposes of subsection (a), the amount so imposed shall be treated as a loss sustained by the S corporation during such taxable year. The character of such loss shall be determined by allocating the loss proportionately among the recognized built-in gains giving rise to such tax. (3) Reduction in pass-thru for tax imposed on excess net passive income If any tax is imposed under section 1375 for any taxable year on an S corporation, for purposes of subsection (a), each item of passive investment income shall be reduced by an amount which bears the same ratio to the amount of such tax as (A) the amount of such item, bears to (B) the total passive investment income for the taxable year.

1367. Adjustments to basis of stock of shareholders, etc.


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(a) General rule (1) Increases in basis

The basis of each shareholders stock in an S corporation shall be increased for any period by the sum of the following items determined with respect to that shareholder for such period: (A) the items of income described in subparagraph (A) of section1366 (a)(1), (B) any nonseparately computed income determined under subparagraph (B) of section 1366 (a)(1), and (C) the excess of the deductions for depletion over the basis of the property subject to depletion. (2) Decreases in basis The basis of each shareholders stock in an S corporation shall be decreased for any period (but not below zero) by the sum of the following items determined with respect to the shareholder for such period: (A) distributions by the corporation which were not includible in the income of the shareholder by reason of section 1368, (B) the items of loss and deduction described in subparagraph (A) of section 1366 (a)(1), (C) any nonseparately computed loss determined under subparagraph (B) of section 1366 (a)(1), (D) any expense of the corporation not deductible in computing its taxable income and not properly chargeable to capital account, and (E) the amount of the shareholders deduction for depletion for any oil and gas property held by the S corporation to the extent such deduction does not exceed the proportionate share of the adjusted basis of such property allocated to such shareholder under section613A (c)(11) (B). The decrease under subparagraph (B) by reason of a charitable contribution (as defined in section 170(c)) of property shall be the amount equal to the shareholders pro rata share of the adjusted basis of such property. The preceding sentence shall not apply to contributions made in taxable years beginning after December 31, 2009. (b) Special rules (1) Income items An amount which is required to be included in the gross income of a shareholder and shown on his return shall be taken into account under subparagraph (A) or (B) of subsection (a)(1) only to the extent such amount is included in the shareholders gross income on his return, increased or decreased by any adjustment of such amount in a redetermination of the shareholders tax liability. (2) Adjustments in basis of indebtedness (A) Reduction of basis If for any taxable year the amounts specified in subparagraphs (B), (C), (D), and (E) of subsection (a)(2) exceed the amount which reduces the shareholders basis to zero, such excess shall be applied to reduce (but not below zero) the shareholders basis in any indebtedness of the S corporation to the shareholder. (B) Restoration of basis If for any taxable year beginning after December 31, 1982, there is a reduction under subparagraph (A) in the shareholders basis in the indebtedness of an S corporation to a shareholder, any net increase (after the application of paragraphs (1) and (2) of subsection (a)) for any subsequent taxable year shall be applied to restore such reduction in basis before any of it may be used to increase the shareholders basis in the stock of the S corporation. (3) Coordination with sections 165 (g) and 166 (d) This section and section 1366 shall be applied before the application of sections 165 (g) and 166 (d) to any taxable year of the shareholder or the corporation in which the security or debt becomes worthless. (4) Adjustments in case of inherited stock (A) In general If any person acquires stock in an S corporation by reason of the death of a decedent or by bequest, devise, or inheritance, section691 shall be applied with respect to any item of income of the S corporation in the same manner as if the decedent had held directly his pro rata share of such item. (B) Adjustments to basis

The basis determined under section 1014 of any stock in an S corporation shall be reduced by the portion of the value of the stock which is attributable to items constituting income in respect of the decedent.

1368. Distributions
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(a) General rule A distribution of property made by an S corporation with respect to its stock to which (but for this subsection) section 301 (c) would apply shall be treated in the manner provided in subsection (b) or (c), whichever applies. (b) S corporation having no earnings and profits In the case of a distribution described in subsection (a) by an S corporation which has no accumulated earnings and profits (1) Amount applied against basis The distribution shall not be included in gross income to the extent that it does not exceed the adjusted basis of the stock. (2) Amount in excess of basis If the amount of the distribution exceeds the adjusted basis of the stock, such excess shall be treated as gain from the sale or exchange of property. (c) S corporation having earnings and profits In the case of a distribution described in subsection (a) by an S corporation which has accumulated earnings and profits (1) Accumulated adjustments account That portion of the distribution which does not exceed the accumulated adjustments account shall be treated in the manner provided by subsection (b). (2) Dividend That portion of the distribution which remains after the application of paragraph (1) shall be treated as a dividend to the extent it does not exceed the accumulated earnings and profits of the S corporation. (3) Treatment of remainder Any portion of the distribution remaining after the application of paragraph (2) of this subsection shall be treated in the manner provided by subsection (b). Except to the extent provided in regulations, if the distributions during the taxable year exceed the amount in the accumulated adjustments account at the close of the taxable year, for purposes of this subsection, the balance of such account shall be allocated among such distributions in proportion to their respective sizes. (d) Certain adjustments taken into account Subsections (b) and (c) shall be applied by taking into account (to the extent proper) (1) the adjustments to the basis of the shareholders stock described in section 1367, and (2) the adjustments to the accumulated adjustments account which are required by subsection (e)(1). In the case of any distribution made during any taxable year, the adjusted basis of the stock shall be determined with regard to the adjustments provided in paragraph (1) of section 1367 (a) for the taxable year. (e) Definitions and special rules For purposes of this section (1) Accumulated adjustments account (A) In general Except as otherwise provided in this paragraph, the term accumulated adjustments account means an account of the S corporation which is adjusted for the S period in a manner similar to the adjustments under section 1367 (except that no adjustment shall be made for income (and related expenses) which is exempt from tax under this title and the phrase (but not below zero) shall be disregarded in section 1367 (a)(2)) and no adjustment shall be made

for Federal taxes attributable to any taxable year in which the corporation was a C corporation. (B) Amount of adjustment in the case of redemptions In the case of any redemption which is treated as an exchange under section 302 (a) or 303 (a), the adjustment in the accumulated adjustments account shall be an amount which bears the same ratio to the balance in such account as the number of shares redeemed in such redemption bears to the number of shares of stock in the corporation immediately before such redemption. (C) Net loss for year disregarded (i) In general In applying this section to distributions made during any taxable year, the amount in the accumulated adjustments account as of the close of such taxable year shall be determined without regard to any net negative adjustment for such taxable year. (ii) Net negative adjustment For purposes of clause (i), the term net negative adjustment means, with respect to any taxable year, the excess (if any) of (I) the reductions in the account for the taxable year (other than for distributions), over (II) the increases in such account for such taxable year. (2) S period The term S period means the most recent continuous period during which the corporation has been an S corporation. Such period shall not include any taxable year beginning before January 1, 1983. (3) Election to distribute earnings first (A) In general An S corporation may, with the consent of all of its affected shareholders, elect to have paragraph (1) of subsection (c) not apply to all distributions made during the taxable year for which the election is made. (B) Affected shareholder For purposes of subparagraph (A), the term affected shareholder means any shareholder to whom a distribution is made by the S corporation during the taxable year. (f) Restricted bank director stock If a director receives a distribution (not in part or full payment in exchange for stock) from an S corporation with respect to any restricted bank director stock (as defined in section 1361 (f)), the amount of such distribution (1) shall be includible in gross income of the director, and (2) shall be deductible by the corporation for the taxable year of such corporation in which or with which ends the taxable year in which such amount in [1] included in the gross income of the director.

[1] So in original. Probably should be is.

PART IIISPECIAL RULES


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1371. Coordination with subchapter C 1372. Partnership rules to apply for fringe benefit purposes 1373. Foreign income 1374. Tax imposed on certain built-in gains

1375. Tax imposed when passive investment income of corporation having accumulated earnings and profits exceeds 25 percent of gross receipts

1371. Coordination with subchapter C


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(a) Application of subchapter C rules Except as otherwise provided in this title, and except to the extent inconsistent with this subchapter, subchapter C shall apply to an S corporation and its shareholders. (b) No carryover between C year and S year (1) From C year to S year No carryforward, and no carryback, arising for a taxable year for which a corporation is a C corporation may be carried to a taxable year for which such corporation is an S corporation. (2) No carryover from S year No carryforward, and no carryback, shall arise at the corporate level for a taxable year for which a corporation is an S corporation. (3) Treatment of S year as elapsed year Nothing in paragraphs (1) and (2) shall prevent treating a taxable year for which a corporation is an S corporation as a taxable year for purposes of determining the number of taxable years to which an item may be carried back or carried forward. (c) Earnings and profits (1) In general Except as provided in paragraphs (2) and (3) and subsection (d)(3), no adjustment shall be made to the earnings and profits of an S corporation. (2) Adjustments for redemptions, liquidations, reorganizations, divisives, etc. In the case of any transaction involving the application of subchapter C to any S corporation, proper adjustment to any accumulated earnings and profits of the corporation shall be made. (3) Adjustments in case of distributions treated as dividends under section 1368 (c) (2) Paragraph (1) shall not apply with respect to that portion of a distribution which is treated as a dividend under section 1368 (c)(2). (d) Coordination with investment credit recapture (1) No recapture by reason of election Any election under section 1362 shall be treated as a mere change in the form of conducting a trade or business for purposes of the second sentence of section 50 (a)(4). (2) Corporation continues to be liable Notwithstanding an election under section 1362, an S corporation shall continue to be liable for any increase in tax under section 49 (b) or 50 (a)attributable to credits allowed for taxable years for which such corporation was not an S corporation. (3) Adjustment to earnings and profits for amount of recapture Paragraph (1) of subsection (c) shall not apply to any increase in tax under section 49 (b) or 50 (a) for which the S corporation is liable. (e) Cash distributions during post-termination transition period (1) In general Any distribution of money by a corporation with respect to its stock during a post-termination transition period shall be applied against and reduce the adjusted basis of the stock, to the extent that the amount of the distribution does not exceed the accumulated adjustments account (within the meaning of section 1368 (e)). (2) Election to distribute earnings first An S corporation may elect to have paragraph (1) not apply to all distributions made during a post-termination transition period described in section 1377 (b)(1)(A). Such election shall not be effective unless all shareholders of the S corporation to whom distributions are made by the S corporation during such post-termination transition period consent to such election.

1372. Partnership rules to apply for fringe benefit purposes


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(a) General rule For purposes of applying the provisions of this subtitle which relate to employee fringe benefits (1) the S corporation shall be treated as a partnership, and (2) any 2-percent shareholder of the S corporation shall be treated as a partner of such partnership. (b) 2-percent shareholder defined For purposes of this section, the term 2-percent shareholder means any person who owns (or is considered as owning within the meaning of section318) on any day during the taxable year of the S corporation more than 2 percent of the outstanding stock of such corporation or stock possessing more than 2 percent of the total combined voting power of all stock of such corporation.

1373. Foreign income


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(a) S corporation treated as partnership, etc. For purposes of subparts A and F of part III, and part V, of subchapter N (relating to income from sources without the United States) (1) an S corporation shall be treated as a partnership, and (2) the shareholders of such corporation shall be treated as partners of such partnership. (b) Recapture of overall foreign loss For purposes of section 904 (f) (relating to recapture of overall foreign loss), the making or termination of an election to be treated as an S corporation shall be treated as a disposition of the business.

1374. Tax imposed on certain built-in gains


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(a) General rule If for any taxable year beginning in the recognition period an S corporation has a net recognized built-in gain, there is hereby imposed a tax (computed under subsection (b)) on the income of such corporation for such taxable year. (b) Amount of tax (1) In general The amount of the tax imposed by subsection (a) shall be computed by applying the highest rate of tax specified in section 11 (b) to the net recognized built-in gain of the S corporation for the taxable year. (2) Net operating loss carryforwards from C years allowed Notwithstanding section 1371 (b)(1), any net operating loss carryforward arising in a taxable year for which the corporation was a C corporation shall be allowed for purposes of this section as a deduction against the net recognized built-in gain of the S corporation for the taxable year. For purposes of determining the amount of any such loss which may be carried to subsequent taxable years, the amount of the net recognized built-in gain shall be treated as taxable income. Rules similar to the rules of the preceding sentences of this paragraph shall apply in the case of a capital loss carryforward arising in a taxable year for which the corporation was a C corporation.

(3) Credits (A) In general Except as provided in subparagraph (B), no credit shall be allowable under part IV of subchapter A of this chapter (other than under section 34) against the tax imposed by subsection (a). (B) Business credit carryforwards from C years allowed Notwithstanding section 1371 (b)(1), any business credit carryforward under section 39 arising in a taxable year for which the corporation was a C corporation shall be allowed as a credit against the tax imposed by subsection (a) in the same manner as if it were imposed by section 11. A similar rule shall apply in the case of the minimum tax credit under section 53 to the extent attributable to taxable years for which the corporation was a C corporation. (4) Coordination with section 1201 (a) For purposes of section 1201 (a) (A) the tax imposed by subsection (a) shall be treated as if it were imposed by section 11, and (B) the amount of the net recognized built-in gain shall be treated as the taxable income. (c) Limitations (1) Corporations which were always S corporations Subsection (a) shall not apply to any corporation if an election under section 1362 (a) has been in effect with respect to such corporation for each of its taxable years. Except as provided in regulations, an S corporation and any predecessor corporation shall be treated as 1 corporation for purposes of the preceding sentence. (2) Limitation on amount of recognized built-in gains The amount of the net recognized built-in gain taken into account under this section for any taxable year shall not exceed the excess (if any) of (A) the net unrealized built-in gain, over (B) the net recognized built-in gain for prior taxable years beginning in the recognition period. (d) Definitions and special rules For purposes of this section (1) Net unrealized built-in gain The term net unrealized built-in gain means the amount (if any) by which (A) the fair market value of the assets of the S corporation as of the beginning of its 1st taxable year for which an election under section1362 (a) is in effect, exceeds (B) the aggregate adjusted bases of such assets at such time. (2) Net recognized built-in gain (A) In general The term net recognized built-in gain means, with respect to any taxable year in the recognition period, the lesser of (i) the amount which would be the taxable income of the S corporation for such taxable year if only recognized built-in gains and recognized built-in losses were taken into account, or (ii) such corporations taxable income for such taxable year (determined as provided in section 1375 (b)(1)(B)). (B) Carryover If, for any taxable year, the amount referred to in clause (i) of subparagraph (A) exceeds the amount referred to in clause (ii) of subparagraph (A), such excess shall be treated as a recognized built-in gain in the succeeding taxable year. The preceding sentence shall apply only in the case of a corporation treated as an S corporation by reason of an election made on or after March 31, 1988. (3) Recognized built-in gain The term recognized built-in gain means any gain recognized during the recognition period on the disposition of any asset except to the extent that the S corporation establishes that (A) such asset was not held by the S corporation as of the beginning of the 1st taxable year for which it was an S corporation, or (B) such gain exceeds the excess (if any) of (i) the fair market value of such asset as of the beginning of such 1st taxable year, over (ii) the adjusted basis of the asset as of such time.

(4) Recognized built-in losses The term recognized built-in loss means any loss recognized during the recognition period on the disposition of any asset to the extent that the S corporation establishes that (A) such asset was held by the S corporation as of the beginning of the 1st taxable year referred to in paragraph (3), and (B) such loss does not exceed the excess of (i) the adjusted basis of such asset as of the beginning of such 1st taxable year, over (ii) the fair market value of such asset as of such time. (5) Treatment of certain built-in items (A) Income items Any item of income which is properly taken into account during the recognition period but which is attributable to periods before the 1st taxable year for which the corporation was an S corporation shall be treated as a recognized built-in gain for the taxable year in which it is properly taken into account. (B) Deduction items Any amount which is allowable as a deduction during the recognition period (determined without regard to any carryover) but which is attributable to periods before the 1st taxable year referred to in subparagraph (A) shall be treated as a recognized built-in loss for the taxable year for which it is allowable as a deduction. (C) Adjustment to net unrealized built-in gain The amount of the net unrealized built-in gain shall be properly adjusted for amounts which would be treated as recognized built-in gains or losses under this paragraph if such amounts were properly taken into account (or allowable as a deduction) during the recognition period. (6) Treatment of certain property If the adjusted basis of any asset is determined (in whole or in part) by reference to the adjusted basis of any other asset held by the S corporation as of the beginning of the 1st taxable year referred to in paragraph (3) (A) such asset shall be treated as held by the S corporation as of the beginning of such 1st taxable year, and (B) any determination under paragraph (3)(B) or (4)(B) with respect to such asset shall be made by reference to the fair market value and adjusted basis of such other asset as of the beginning of such 1st taxable year. (7) Recognition period (A) In general The term recognition period means the 10-year period beginning with the 1st day of the 1st taxable year for which the corporation was an S corporation. (B) Special rule for 2009 and 2010 In the case of any taxable year beginning in 2009 or 2010, no tax shall be imposed on the net recognized built-in gain of an S corporation if the 7th taxable year in the recognition period preceded such taxable year. The preceding sentence shall be applied separately with respect to any asset to which paragraph (8) applies. (C) Special rule for distributions to shareholders For purposes of applying this section to any amount includible in income by reason of distributions to shareholders pursuant to section 593 (e) (i) subparagraph (A) shall be applied without regard to the phrase 10-year, and (ii) subparagraph (B) shall not apply. (8) Treatment of transfer of assets from C corporation to S corporation (A) In general Except to the extent provided in regulations, if (i) an S corporation acquires any asset, and (ii) the S corporations basis in such asset is determined (in whole or in part) by reference to the basis of such asset (or any other property) in the hands of a C corporation, then a tax is hereby imposed on any net recognized built-in gain attributable to any such assets for any taxable year beginning in the recognition period. The amount of such tax shall be determined under the rules of this section as modified by subparagraph (B). (B) Modifications For purposes of this paragraph, the modifications of this subparagraph are as follows:

(i) In general The preceding paragraphs of this subsection shall be applied by taking into account the day on which the assets were acquired by the S corporation in lieu of the beginning of the 1st taxable year for which the corporation was an S corporation. (ii) Subsection (c)(1) not to apply Subsection (c)(1) shall not apply. (9) Reference to 1st taxable year Any reference in this section to the 1st taxable year for which the corporation was an S corporation shall be treated as a reference to the 1st taxable year for which the corporation was an S corporation pursuant to its most recent election under section 1362. (e) Regulations The Secretary shall prescribe such regulations as may be necessary to carry out the purposes of this section including regulations providing for the appropriate treatment of successor corporations.

1375. Tax imposed when passive investment income of corporation having accumulated earnings and profits exceeds 25 percent of gross receipts
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(a) General rule If for the taxable year an S corporation has (1) accumulated earnings and profits at the close of such taxable year, and (2) gross receipts more than 25 percent of which are passive investment income, then there is hereby imposed a tax on the income of such corporation for such taxable year. Such tax shall be computed by multiplying the excess net passive income by the highest rate of tax specified in section 11 (b). (b) Definitions For purposes of this section (1) Excess net passive income (A) In general Except as provided in subparagraph (B), the term excess net passive income means an amount which bears the same ratio to the net passive income for the taxable year as (i) the amount by which the passive investment income for the taxable year exceeds 25 percent of the gross receipts for the taxable year, bears to (ii) the passive investment income for the taxable year. (B) Limitation The amount of the excess net passive income for any taxable year shall not exceed the amount of the corporations taxable income for such taxable year as determined under section 63 (a) (i) without regard to the deductions allowed by part VIII of subchapter B (other than the deduction allowed by section 248, relating to organization expenditures), and (ii) without regard to the deduction under section 172. (2) Net passive income The term net passive income means (A) passive investment income, reduced by (B) the deductions allowable under this chapter which are directly connected with the production of such income (other than deductions allowable under section 172 and part VIII of subchapter B). (3) Passive investment income, etc. The terms passive investment income and gross receipts have the same respective meanings as when used in paragraph (3) of section1362 (d). (4) Coordination with section 1374

Notwithstanding paragraph (3), the amount of passive investment income shall be determined by not taking into account any recognized built-in gain or loss of the S corporation for any taxable year in the recognition period. Terms used in the preceding sentence shall have the same respective meanings as when used in section 1374. (c) Credits not allowable No credit shall be allowed under part IV of subchapter A of this chapter (other than section 34) against the tax imposed by subsection (a). (d) Waiver of tax in certain cases If the S corporation establishes to the satisfaction of the Secretary that (1) it determined in good faith that it had no accumulated earnings and profits at the close of a taxable year, and (2) during a reasonable period of time after it was determined that it did have accumulated earnings and profits at the close of such taxable year such earnings and profits were distributed, the Secretary may waive the tax imposed by subsection (a) for such taxable year.

PART IVDEFINITIONS; MISCELLANEOUS


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1377. Definitions and special rule 1378. Taxable year of S corporation 1379. Transitional rules on enactment

1377. Definitions and special rule


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(a) Pro rata share For purposes of this subchapter (1) In general Except as provided in paragraph (2), each shareholders pro rata share of any item for any taxable year shall be the sum of the amounts determined with respect to the shareholder (A) by assigning an equal portion of such item to each day of the taxable year, and (B) then by dividing that portion pro rata among the shares outstanding on such day. (2) Election to terminate year (A) In general Under regulations prescribed by the Secretary, if any shareholder terminates the shareholders interest in the corporation during the taxable year and all affected shareholders and the corporation agree to the application of this paragraph, paragraph (1) shall be applied to the affected shareholders as if the taxable year consisted of 2 taxable years the first of which ends on the date of the termination. (B) Affected shareholders For purposes of subparagraph (A), the term affected shareholders means the shareholder whose interest is terminated and all shareholders to whom such shareholder has transferred shares during the taxable year. If such shareholder has transferred shares to the corporation, the term affected shareholders shall include all persons who are shareholders during the taxable year. (b) Post-termination transition period (1) In general For purposes of this subchapter, the term post-termination transition period means

(A) the period beginning on the day after the last day of the corporations last taxable year as an S corporation and ending on the later of (i) the day which is 1 year after such last day, or (ii) the due date for filing the return for such last year as an S corporation (including extensions), (B) the 120-day period beginning on the date of any determination pursuant to an audit of the taxpayer which follows the termination of the corporations election and which adjusts a subchapter S item of income, loss, or deduction of the corporation arising during the S period (as defined in section 1368 (e)(2)), and (C) the 120-day period beginning on the date of a determination that the corporations election under section 1362 (a) had terminated for a previous taxable year. (2) Determination defined For purposes of paragraph (1), the term determination means (A) a determination as defined in section 1313 (a), or (B) an agreement between the corporation and the Secretary that the corporation failed to qualify as an S corporation. (3) Special rules for audit related post-termination transition periods (A) No application to carryovers Paragraph (1)(B) shall not apply for purposes of section 1366 (d)(3). (B) Limitation on application to distributions Paragraph (1)(B) shall apply to a distribution described in section1371 (e) only to the extent that the amount of such distribution does not exceed the aggregate increase (if any) in the accumulated adjustments account (within the meaning of section 1368 (e)) by reason of the adjustments referred to in such paragraph. (c) Manner of making elections, etc. Any election under this subchapter, and any revocation under section 1362(d)(1), shall be made in such manner as the Secretary shall by regulations prescribe.

1378. Taxable year of S corporation


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(a) General rule For purposes of this subtitle, the taxable year of an S corporation shall be a permitted year. (b) Permitted year defined For purposes of this section, the term permitted year means a taxable year which (1) is a year ending December 31, or (2) is any other accounting period for which the corporation establishes a business purpose to the satisfaction of the Secretary. For purposes of paragraph (2), any deferral of income to shareholders shall not be treated as a business purpose.

1379. Transitional rules on enactment


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(a) Old elections Any election made under section 1372 (a) (as in effect before the enactment of the Subchapter S Revision Act of 1982) shall be treated as an election made under section 1362. (b) References to prior law included Any references in this title to a provision of this subchapter shall, to the extent not inconsistent with the purposes of this subchapter, include a reference to the corresponding provision as in effect before the enactment of the Subchapter S Revision Act of 1982. (c) Distributions of undistributed taxable income If a corporation was an electing small business corporation for the last preenactment year, subsections (f) and (d) of section 1375 (as in effect before the enactment of the Subchapter S Revision Act of 1982) shall continue to apply with respect to distributions of undistributed taxable income for any taxable year beginning before January 1, 1983.

(d) Carryforwards If a corporation was an electing small business corporation for the last preenactment year and is an S corporation for the 1st postenactment year, any carryforward to the 1st postenactment year which arose in a taxable year for which the corporation was an electing small business corporation shall be treated as arising in the 1st postenactment year. (e) Preenactment and postenactment years defined For purposes of this subsection (1) Last preenactment year The term last preenactment year means the last taxable year of a corporation which begins before January 1, 1983. (2) 1st postenactment year The term 1st postenactment year means the 1st taxable year of a corporation which begins after December 31, 1982.

Subchapter TCooperatives and Their Patrons


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PART ITAX TREATMENT OF COOPERATIVES ( 13811383)

PART IITAX TREATMENT BY PATRONS OF PATRONAGE DIVIDENDS AND PER-UNIT RETAIN ALLOCATIONS ( 1385) PART IIIDEFINITIONS; SPECIAL RULES ( 1388)

PART ITAX TREATMENT OF COOPERATIVES


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1381. Organizations to which part applies 1382. Taxable income of cooperatives

1383. Computation of tax where cooperative redeems nonqualified written notices of allocation or nonqualified per-unit retain certificates

1381. Organizations to which part applies


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(a) In general This part shall apply to (1) any organization exempt from tax under section 521 (relating to exemption of farmers cooperatives from tax), and (2) any corporation operating on a cooperative basis other than an organization (A) which is exempt from tax under this chapter, (B) which is subject to the provisions of (i) part II of subchapter H (relating to mutual savings banks, etc.), or (ii) subchapter L (relating to insurance companies), or (C) which is engaged in furnishing electric energy, or providing telephone service, to persons in rural areas. (b) Tax on certain farmers cooperatives An organization described in subsection (a)(1) shall be subject to the taxes imposed by section 11 or 1201. (c) Cross reference

For treatment of income from load loss transactions of organizations described in subsection (a)(2)(C), see section 501 (c)(12)(H).

1382. Taxable income of cooperatives


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(a) Gross income Except as provided in subsection (b), the gross income of any organization to which this part applies shall be determined without any adjustment (as a reduction in gross receipts, an increase in cost of goods sold, or otherwise) by reason of any allocation or distribution to a patron out of the net earnings of such organization or by reason of any amount paid to a patron as a per-unit retain allocation (as defined in section 1388 (f)). (b) Patronage dividends and per-unit retain allocations In determining the taxable income of an organization to which this part applies, there shall not be taken into account amounts paid during the payment period for the taxable year (1) as patronage dividends (as defined in section 1388 (a)), to the extent paid in money, qualified written notices of allocation (as defined in section1388 (c)), or other property (except nonqualified written notices of allocation (as defined in section 1388 (d))) with respect to patronage occurring during such taxable year; (2) in money or other property (except written notices of allocation) in redemption of a nonqualified written notice of allocation which was paid as a patronage dividend during the payment period for the taxable year during which the patronage occurred; (3) as per-unit retain allocations (as defined in section 1388 (f)), to the extent paid in money, qualified per-unit retain certificates (as defined in section 1388 (h)), or other property (except nonqualified per-unit retain certificates, as defined in section 1388 (i)) with respect to marketing occurring during such taxable year; or (4) in money or other property (except per-unit retain certificates) in redemption of a nonqualified per-unit retain certificate which was paid as a per-unit retain allocation during the payment period for the taxable year during which the marketing occurred. For purposes of this title, any amount not taken into account under the preceding sentence shall, in the case of an amount described in paragraph (1) or (2), be treated in the same manner as an item of gross income and as a deduction therefrom, and in the case of an amount described in paragraph (3) or (4), be treated as a deduction in arriving at gross income. (c) Deduction for nonpatronage distributions, etc. In determining the taxable income of an organization described in section1381 (a)(1), there shall be allowed as a deduction (in addition to other deductions allowable under this chapter) (1) amounts paid during the taxable year as dividends on its capital stock; and (2) amounts paid during the payment period for the taxable year (A) in money, qualified written notices of allocation, or other property (except nonqualified written notices of allocation) on a patronage basis to patrons with respect to its earnings during such taxable year which are derived from business done for the United States or any of its agencies or from sources other than patronage, or (B) in money or other property (except written notices of allocation) in redemption of a nonqualified written notice of allocation which was paid, during the payment period for the taxable year during which the earnings were derived, on a patronage basis to a patron with respect to earnings derived from business or sources described in subparagraph (A). (d) Payment period for each taxable year For purposes of subsections (b) and (c)(2), the payment period for any taxable year is the period beginning with the first day of such taxable year and ending with the fifteenth day of the ninth month following the close of such year. For purposes of subsections (b)(1) and (c) (2)(A), a qualified check issued during the payment period shall be treated as an amount paid in money during such period if endorsed and cashed on or before the 90th day after the close of such period. (e) Products marketed under pooling arrangements

For purposes of subsection (b), in the case of a pooling arrangement for the marketing of products (1) the patronage shall (to the extent provided in regulations prescribed by the Secretary) be treated as patronage occurring during the taxable year in which the pool closes, and (2) the marketing of products shall be treated as occurring during any of the taxable years in which the pool is open. (f) Treatment of earnings received after patronage occurred If any portion of the earnings from business done with or for patrons is includible in the organizations gross income for a taxable year after the taxable year during which the patronage occurred, then for purposes of applying paragraphs (1) and (2) of subsection (b) to such portion the patronage shall, to the extent provided in regulations prescribed by the Secretary, be considered to have occurred during the taxable year of the organization during which such earnings are includible in gross income. (g) Use of completed crop pool method of accounting (1) In general An organization described in section 1381 (a) which is engaged in pooling arrangements for the marketing of products may compute its taxable income with respect to any pool opened prior to March 1, 1978, under the completed crop pool method of accounting if (A) the organization has computed its taxable income under such method for the 10 taxable years ending with its first taxable year beginning after December 31, 1976, and (B) with respect to the pool, the organization has entered into an agreement with the United States or any of its agencies which includes provisions to the effect that (i) the United States or such agency shall provide a loan to the organization with the products comprising the pool serving as collateral for such loan, (ii) the organization shall use an amount equal to the proceeds of such loan to make price support advances to eligible producers (as determined by the United States or such agency), to defray costs of handling, processing, and storing such products, or to pay all or part of any administrative costs associated with the price support program, (iii) an amount equal to the net proceeds (as determined under such agreement) from the sale or exchange of the products in the pool shall be used to repay such loan until such loan is repaid in full (or all the products in the pool are disposed of), and (iv) the net gains (as determined under such agreement) from the sale or exchange of such products shall be distributed to eligible producers, except to the extent that the United States or such agency permits otherwise. (2) Completed crop pool method of accounting defined For purposes of this subsection, the term completed crop pool method of accounting means a method of accounting under which gain or loss is computed separately for each crop year pool in the year in which the last of the products in the pool are disposed of.

1383. Computation of tax where cooperative redeems nonqualified written notices of allocation or nonqualified per-unit retain certificates
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(a) General rule If, under section 1382 (b)(2) or (4), or (c)(2)(B), a deduction is allowable to an organization for the taxable year for amounts paid in redemption of nonqualified written notices of allocation or non-qualified per-unit retain certificates, then the tax imposed by this chapter on such organization for the taxable year shall be the lesser of the following: (1) the tax for the taxable year computed with such deduction; or (2) an amount equal to (A) the tax for the taxable year computed without such deduction, minus (B) the decrease in tax under this chapter for any prior taxable year (or years) which would result solely from treating such nonqualified written notices of allocation or nonqualified per-

unit retain certificates as qualified written notices of allocation or qualified per-unit retain certificates (as the case may be). (b) Special rules (1) If the decrease in tax ascertained under subsection (a)(2)(B) exceeds the tax for the taxable year (computed without the deduction described in subsection (a)) such excess shall be considered to be a payment of tax on the last day prescribed by law for the payment of tax for the taxable year, and shall be refunded or credited in the same manner as if it were an overpayment for such taxable year. (2) For purposes of determining the decrease in tax under subsection (a)(2)(B), the stated dollar amount of any nonqualified written notice of allocation or nonqualified per-unit retain certificate which is to be treated under such subsection as a qualified written notice of allocation or qualified per-unit retain certificate (as the case may be) shall be the amount paid in redemption of such written notice of allocation or per-unit retain certificate which is allowable as a deduction under section 1382 (b)(2) or (4), or (c)(2)(B) for the taxable year. (3) If the tax imposed by this chapter for the taxable year is the amount determined under subsection (a)(2), then the deduction described in subsection (a) shall not be taken into account for any purpose of this subtitle other than for purposes of this section.

PART IITAX TREATMENT BY PATRONS OF PATRONAGE DIVIDENDS AND PER-UNIT RETAIN ALLOCATIONS
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1385. Amounts includible in patrons gross income

1385. Amounts includible in patrons gross income


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(a) General rule Except as otherwise provided in subsection (b), each person shall include in gross income (1) the amount of any patronage dividend which is paid in money, a qualified written notice of allocation, or other property (except a nonqualified written notice of allocation), and which is received by him during the taxable year from an organization described in section 1381 (a), (2) any amount, described in section 1382 (c)(2)(A) (relating to certain nonpatronage distributions by tax-exempt farmers cooperatives), which is paid in money, a qualified written notice of allocation, or other property (except a nonqualified written notice of allocation), and which is received by him during the taxable year from an organization described in section1381 (a)(1), and (3) the amount of any per-unit retain allocation which is paid in qualified per-unit retain certificates and which is received by him during the taxable year from an organization described in section 1381 (a). (b) Exclusion from gross income Under regulations prescribed by the Secretary, the amount of any patronage dividend, and any amount received on the redemption, sale, or other disposition of a nonqualified written notice of allocation which was paid as a patronage dividend, shall not be included in gross income to the extent that such amount (1) is properly taken into account as an adjustment to basis of property, or

(2) is attributable to personal, living, or family items. (c) Treatment of certain nonqualified written notices of allocation and certain nonqualified per-unit retain certificates (1) Application of subsection This subsection shall apply to (A) any nonqualified written notice of allocation which (i) was paid as a patronage dividend, or (ii) was paid by an organization described in section 1381 (a)(1)on a patronage basis with respect to earnings derived from business or sources described in section 1382 (c)(2)(A), and (B) any nonqualified per-unit retain certificate which was paid as a per-unit retain allocation. (2) Basis; amount of gain In the case of any nonqualified written notice of allocation or nonqualified per-unit retain certificate to which this subsection applies, for purposes of this chapter (A) the basis of such written notice of allocation or per-unit retain certificate in the hands of the patron to whom such written notice of allocation or per-unit retain certificate was paid shall be zero, (B) the basis of such written notice of allocation or per-unit retain certificate which was acquired from a decedent shall be its basis in the hands of the decedent, and (C) gain on the redemption, sale, or other disposition of such written notice of allocation or per-unit retain certificate by any person shall, to the extent that the stated dollar amount of such written notice of allocation or per-unit retain certificate exceeds its basis, be considered as ordinary income.

PART IIIDEFINITIONS; SPECIAL RULES


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1388. Definitions; special rules

1388. Definitions; special rules


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(a) Patronage dividend For purposes of this subchapter, the term patronage dividend means an amount paid to a patron by an organization to which part I of this subchapter applies (1) on the basis of quantity or value of business done with or for such patron, (2) under an obligation of such organization to pay such amount, which obligation existed before the organization received the amount so paid, and (3) which is determined by reference to the net earnings of the organization from business done with or for its patrons. Such term does not include any amount paid to a patron to the extent that (A) such amount is out of earnings other than from business done with or for patrons, or (B) such amount is out of earnings from business done with or for other patrons to whom no amounts are paid, or to whom smaller amounts are paid, with respect to substantially identical transactions. For purposes of paragraph (3), net earnings shall not be reduced by amounts paid during the year as dividends on capital stock or other proprietary capital interests of the organization to the extent that the articles of incorporation or bylaws of such organization or other contract with patrons provide that such dividends are in addition to amounts otherwise payable to patrons which are derived from business done with or for patrons during the taxable year. (b) Written notice of allocation For purposes of this subchapter, the term written notice of allocation means any capital stock, revolving fund certificate, retain certificate, certificate of indebtedness, letter of advice,

or other written notice, which discloses to the recipient the stated dollar amount allocated to him by the organization and the portion thereof, if any, which constitutes a patronage dividend. (c) Qualified written notice of allocation (1) Defined For purposes of this subchapter, the term qualified written notice of allocation means (A) a written notice of allocation which may be redeemed in cash at its stated dollar amount at any time within a period beginning on the date such written notice of allocation is paid and ending not earlier than 90 days from such date, but only if the distributee receives written notice of the right of redemption at the time he receives such written notice of allocation; and (B) a written notice of allocation which the distributee has consented, in the manner provided in paragraph (2), to take into account at its stated dollar amount as provided in section 1385 (a). Such term does not include any written notice of allocation which is paid as part of a patronage dividend or as part of a payment described in section1382 (c)(2)(A), unless 20 percent or more of the amount of such patronage dividend, or such payment, is paid in money or by qualified check. (2) Manner of obtaining consent A distributee shall consent to take a written notice of allocation into account as provided in paragraph (1)(B) only by (A) making such consent in writing, (B) obtaining or retaining membership in the organization after (i) such organization has adopted (after October 16, 1962) a bylaw providing that membership in the organization constitutes such consent, and (ii) he has received a written notification and copy of such bylaw, or (C) if neither subparagraph (A) nor (B) applies, endorsing and cashing a qualified check, paid as a part of the patronage dividend or payment of which such written notice of allocation is also a part, on or before the 90th day after the close of the payment period for the taxable year of the organization for which such patronage dividend or payment is paid. (3) Period for which consent is effective (A) General rule Except as provided in subparagraph (B) (i) a consent described in paragraph (2) (A) shall be a consent with respect to all patronage of the distributee with the organization occurring (determined with the application of section1382 (e)) during the taxable year of the organization during which such consent is made and all subsequent taxable years of the organization; and (ii) a consent described in paragraph (2) (B) shall be a consent with respect to all patronage of the distributee with the organization occurring (determined without the application of section 1382 (e)) after he received the notification and copy described in paragraph (2)(B) (ii). (B) Revocation, etc. (i) Any consent described in paragraph (2)(A) may be revoked (in writing) by the distributee at any time. Any such revocation shall be effective with respect to patronage occurring on or after the first day of the first taxable year of the organization beginning after the revocation is filed with such organization; except that in the case of a pooling arrangement described in section 1382 (e), a revocation made by a distributee shall not be effective as to any pool with respect to which the distributee has been a patron before such revocation. (ii) Any consent described in paragraph (2)(B) shall not be effective with respect to any patronage occurring (determined without the application of section 1382 (e)) after the distributee ceases to be a member of the organization or after the bylaws of the organization cease to contain the provision described in paragraph (2)(B)(i). (4) Qualified check For purposes of this subchapter, the term qualified check means only a check (or other instrument which is redeemable in money) which is paid as a part of a patronage dividend, or as a part of a payment described in section 1382 (c)(2)(A), to a distributee who has not given consent as provided in paragraph (2)(A) or (B) with respect to such patronage dividend or payment, and on which there is clearly imprinted a statement that the endorsement and cashing of the check (or other instrument) constitutes the consent of the payee to include in

his gross income, as provided in the Federal income tax laws, the stated dollar amount of the written notice of allocation which is a part of the patronage dividend or payment of which such qualified check is also a part. Such term does not include any check (or other instrument) which is paid as part of a patronage dividend or payment which does not include a written notice of allocation (other than a written notice of allocation described in paragraph (1)(A)). (d) Nonqualified written notice of allocation For purposes of this subchapter, the term nonqualified written notice of allocation means a written notice of allocation which is not described in subsection (c) or a qualified check which is not cashed on or before the 90th day after the close of the payment period for the taxable year for which the distribution of which it is a part is paid. (e) Determination of amount paid or received For purposes of this subchapter, in determining amounts paid or received (1) property (other than a written notice of allocation or a per-unit retain certificate) shall be taken into account at its fair market value, and (2) a qualified written notice of allocation or qualified per-unit retain certificate shall be taken into account at its stated dollar amount. (f) Per-unit retain allocation For purposes of this subchapter, the term per-unit retain allocation means any allocation, by an organization to which part I of this subchapter applies, to a patron with respect to products marketed for him, the amount of which is fixed without reference to the net earnings of the organization pursuant to an agreement between the organization and the patron. (g) Per-unit retain certificate For purposes of this subchapter, the term per-unit retain certificate means any written notice which discloses to the recipient the stated dollar amount of a per-unit retain allocation to him by the organization. (h) Qualified per-unit retain certificate (1) Defined For purposes of this subchapter, the term qualified per-unit retain certificate means any per-unit retain certificate which the distributee has agreed, in the manner provided in paragraph (2), to take into account at its stated dollar amount as provided in section 1385 (a). (2) Manner of obtaining agreement A distributee shall agree to take a per-unit retain certificate into account as provided in paragraph (1) only by (A) making such agreement in writing, or (B) obtaining or retaining membership in the organization after (i) such organization has adopted (after November 13, 1966) a bylaw providing that membership in the organization constitutes such agreement, and (ii) he has received a written notification and copy of such bylaw. (3) Period for which agreement is effective (A) General rule Except as provided in subparagraph (B) (i) an agreement described in paragraph (2)(A) shall be an agreement with respect to all products delivered by the distributee to the organization during the taxable year of the organization during which such agreement is made and all subsequent taxable years of the organization; and (ii) an agreement described in paragraph (2)(B) shall be an agreement with respect to all products delivered by the distributee to the organization after he received the notification and copy described in paragraph (2)(B)(ii). (B) Revocation, etc. (i) Any agreement described in paragraph (2)(A) may be revoked (in writing) by the distributee at any time. Any such revocation shall be effective with respect to products delivered by the distributee on or after the first day of the first taxable year of the organization beginning after the revocation is filed with the organization; except that in the case of a pooling arrangement described in section 1382 (e) a revocation made by a

distributee shall not be effective as to any products which were delivered to the organization by the distributee before such revocation. (ii) Any agreement described in paragraph (2)(B) shall not be effective with respect to any products delivered after the distributee ceases to be a member of the organization or after the bylaws of the organization cease to contain the provision described in paragraph (2)(B) (i). (i) Nonqualified per-unit retain certificate For purposes of this subchapter, the term nonqualified per-unit retain certificate means a per-unit retain certificate which is not described in subsection (h). (j) Special rules for the netting of gains and losses by cooperatives For purposes of this subchapter, in the case of any organization to which part I of this subchapter applies (1) Optional netting of patronage gains and losses permitted The net earnings of such organization may, at its option, be determined by offsetting patronage losses (including any patronage loss carried to such year) which are attributable to 1 or more allocation units (whether such units are functional, divisional, departmental, geographic, or otherwise) against patronage earnings of 1 or more other such allocation units. (2) Certain netting permitted after section 381 transactions If such an organization acquires the assets of another such organization in a transaction described in section 381 (a), the acquiring organization may, in computing its net earnings for taxable years ending after the date of acquisition, offset losses of 1 or more allocation units of the acquiring or acquired organization against earnings of the acquired or acquiring organization, respectively, but only to the extent (A) such earnings are properly allocable to periods after the date of acquisition, and (B) such earnings could have been offset by such losses if such earnings and losses had been derived from allocation units of the same organization. (3) Notice requirements (A) In general In the case of any organization which exercises its option under paragraph (1) for any taxable year, such organization shall, on or before the 15th day of the 9th month following the close of such taxable year, provide to its patrons a written notice which (i) states that the organization has offset earnings and losses from 1 or more of its allocation units and that such offset may have affected the amount which is being distributed to its patrons, (ii) states generally the identity of the offsetting allocation units, and (iii) states briefly what rights, if any, its patrons may have to additional financial information of such organization under terms of its charter, articles of incorporation, or bylaws, or under any provision of law. (B) Certain information need not be provided An organization may exclude from the information required to be provided under clause (ii) of subparagraph (A) any detailed or specific data regarding earnings or losses of such units which such organization determines would disclose commercially sensitive information which (i) could result in a competitive disadvantage to such organization, or (ii) could create a competitive advantage to the benefit of a competitor of such organization. (C) Failure to provide sufficient notice If the Secretary determines that an organization failed to provide sufficient notice under this paragraph (i) the Secretary shall notify such organization, and (ii) such organization shall, upon receipt of such notification, provide to its patrons a revised notice meeting the requirements of this paragraph. Any such failure shall not affect the treatment of the organization under any provision of this subchapter or section 521. (4) Patronage earnings or losses defined For purposes of this subsection, the terms patronage earnings and patronage losses means earnings and losses, respectively, which are derived from business done with or for patrons of the organization.

(k) Cooperative marketing includes value-added processing involving animals For purposes of section 521 and this subchapter, the marketing of the products of members or other producers shall include the feeding of such products to cattle, hogs, fish, chickens, or other animals and the sale of the resulting animals or animal products.

Subchapter UDesignation and Treatment of Empowerment Zones, Enterprise Communities, and Rural Development Investment Areas
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PART IDESIGNATION ( 13911393)

PART IITAX-EXEMPT FACILITY BONDS FOR EMPOWERMENT ZONES AND ENTERPRISE COMMUNITIES ( 1394) PART IIIADDITIONAL INCENTIVES FOR EMPOWERMENT ZONES ( 1396 1397D) PART IVINCENTIVES FOR EDUCATION ZONES ( 1397E) PART VREGULATIONS ( 1397F)

PART IDESIGNATION
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1391. Designation procedure 1392. Eligibility criteria 1393. Definitions and special rules

1391. Designation procedure


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(a) In general From among the areas nominated for designation under this section, the appropriate Secretaries may designate empowerment zones and enterprise communities. (b) Number of designations (1) Enterprise communities The appropriate Secretaries may designate in the aggregate 95 nominated areas as enterprise communities under this section, subject to the availability of eligible nominated areas. Of that number, not more than 65 may be designated in urban areas and not more than 30 may be designated in rural areas. (2) Empowerment zones The appropriate Secretaries may designate in the aggregate 11 nominated areas as empowerment zones under this section, subject to the availability of eligible nominated areas. Of that number, not more than 8 may be designated in urban areas and not more than 3 may be designated in rural areas. If 6 empowerment zones are designated in urban areas,

no less than 1 shall be designated in an urban area the most populous city of which has a population of 500,000 or less and no less than 1 shall be a nominated area which includes areas in 2 States and which has a population of 50,000 or less. The Secretary of Housing and Urban Development shall designate empowerment zones located in urban areas in such a manner that the aggregate population of all such zones does not exceed 1,000,000. (c) Period designations may be made A designation may be made under subsection (a) only after 1993 and before 1996. (d) Period for which designation is in effect (1) In general Any designation under this section shall remain in effect during the period beginning on the date of the designation and ending on the earliest of (A) (i) in the case of an empowerment zone, December 31, 2009, or (ii) in the case of an enterprise community, the close of the 10th calendar year beginning on or after such date of designation, (B) the termination date designated by the State and local governments as provided for in their nomination, or (C) the date the appropriate Secretary revokes the designation. (2) Revocation of designation The appropriate Secretary may revoke the designation under this section of an area if such Secretary determines that the local government or the State in which it is located (A) has modified the boundaries of the area, or (B) is not complying substantially with, or fails to make progress in achieving the benchmarks set forth in, the strategic plan under subsection (f)(2). (e) Limitations on designations No area may be designated under this section unless (1) the area is nominated by 1 or more local governments and the State or States in which it is located for designation under this section, (2) such State or States and the local governments have the authority (A) to nominate the area for designation under this section, and (B) to provide the assurances described in paragraph (3), (3) such State or States and the local governments provide written assurances satisfactory to the appropriate Secretary that the strategic plan described in the application under subsection (f)(2) for such area will be implemented, (4) the appropriate Secretary determines that any information furnished is reasonably accurate, and (5) such State or States and local governments certify that no portion of the area nominated is already included in an empowerment zone or in an enterprise community or in an area otherwise nominated to be designated under this section. (f) Application No area may be designated under this section unless the application for such designation (1) demonstrates that the nominated area satisfies the eligibility criteria described in section 1392, (2) includes a strategic plan for accomplishing the purposes of this subchapter that (A) describes the coordinated economic, human, community, and physical development plan and related activities proposed for the nominated area, (B) describes the process by which the affected community is a full partner in the process of developing and implementing the plan and the extent to which local institutions and organizations have contributed to the planning process, (C) identifies the amount of State, local, and private resources that will be available in the nominated area and the private/public partnerships to be used, which may include participation by, and cooperation with, universities, medical centers, and other private and public entities, (D) identifies the funding requested under any Federal program in support of the proposed economic, human, community, and physical development and related activities, (E) identifies baselines, methods, and benchmarks for measuring the success of carrying out the strategic plan, including the extent to which poor persons and families will be empowered to become economically self-sufficient, and

(F) does not include any action to assist any establishment in relocating from one area outside the nominated area to the nominated area, except that assistance for the expansion of an existing business entity through the establishment of a new branch, affiliate, or subsidiary is permitted if (i) the establishment of the new branch, affiliate, or subsidiary will not result in a decrease in employment in the area of original location or in any other area where the existing business entity conducts business operations, and (ii) there is no reason to believe that the new branch, affiliate, or subsidiary is being established with the intention of closing down the operations of the existing business entity in the area of its original location or in any other area where the existing business entity conducts business operation, and (3) includes such other information as may be required by the appropriate Secretary. (g) Additional designations permitted (1) In general In addition to the areas designated under subsection (a), the appropriate Secretaries may designate in the aggregate an additional 20 nominated areas as empowerment zones under this section, subject to the availability of eligible nominated areas. Of that number, not more than 15 may be designated in urban areas and not more than 5 may be designated in rural areas. (2) Period designations may be made and take effect A designation may be made under this subsection after the date of the enactment of this subsection and before January 1, 1999. (3) Modifications to eligibility criteria, etc. (A) Poverty rate requirement (i) In general A nominated area shall be eligible for designation under this subsection only if the poverty rate for each population census tract within the nominated area is not less than 20 percent and the poverty rate for at least 90 percent of the population census tracts within the nominated area is not less than 25 percent. (ii) Treatment of census tracts with small populations A population census tract with a population of less than 2,000 shall be treated as having a poverty rate of not less than 25 percent if (I) more than 75 percent of such tract is zoned for commercial or industrial use, and (II) such tract is contiguous to 1 or more other population census tracts which have a poverty rate of not less than 25 percent (determined without regard to this clause). (iii) Exception for developable sites Clause (i) shall not apply to up to 3 noncontiguous parcels in a nominated area which may be developed for commercial or industrial purposes. The aggregate area of noncontiguous parcels to which the preceding sentence applies with respect to any nominated area shall not exceed 2,000 acres. (iv) Certain provisions not to apply Section 1392 (a)(4) (and so much of paragraphs (1) and (2) of section 1392 (b) as relate to section 1392 (a)(4)) shall not apply to an area nominated for designation under this subsection. (v) Special rule for rural empowerment zone The Secretary of Agriculture may designate not more than 1 empowerment zone in a rural area without regard to clause (i) if such area satisfies emigration criteria specified by the Secretary of Agriculture. (B) Size limitation (i) In general The parcels described in subparagraph (A)(iii) shall not be taken into account in determining whether the requirement of subparagraph (A) or (B) of section 1392 (a)(3) is met. (ii) Special rule for rural areas If a population census tract (or equivalent division under section 1392 (b)(4)) in a rural area exceeds 1,000 square miles or includes a substantial amount of land owned by the Federal, State, or local government, the nominated area may exclude such excess square mileage or governmentally owned land and the exclusion of that area will not be treated as violating the continuous boundary requirement of section 1392 (a) (3)(B). (C) Aggregate population limitation The aggregate population limitation under the last sentence of subsection (b)(2) shall not apply to a designation under paragraph (1). (D) Previously designated enterprise communities may be included

Subsection (e)(5) shall not apply to any enterprise community designated under subsection (a) that is also nominated for designation under this subsection. (E) Indian reservations may be nominated (i) In general Section 1393 (a)(4) shall not apply to an area nominated for designation under this subsection. (ii) Special rule An area in an Indian reservation shall be treated as nominated by a State and a local government if it is nominated by the reservation governing body (as determined by the Secretary of [1] Interior). (h) Additional designations permitted (1) In general In addition to the areas designated under subsections (a) and (g), the appropriate Secretaries may designate in the aggregate an additional 9 nominated areas as empowerment zones under this section, subject to the availability of eligible nominated areas. Of that number, not more than seven may be designated in urban areas and not more than 2 may be designated in rural areas. (2) Period designations may be made and take effect A designation may be made under this subsection after the date of the enactment of this subsection and before January 1, 2002. Subject to subparagraphs (B) and (C) of subsection (d)(1), such designations shall remain in effect during the period beginning on January 1, 2002, and ending on December 31, 2009. (3) Modifications to eligibility criteria, etc. The rules of subsection (g)(3) shall apply to designations under this subsection. (4) Empowerment zones which become renewal communities The number of areas which may be designated as empowerment zones under this subsection shall be increased by 1 for each area which ceases to be an empowerment zone by reason of section 1400E (e). Each additional area designated by reason of the preceding sentence shall have the same urban or rural character as the area it is replacing.

[1] So in original. Probably should be followed by the.

1392. Eligibility criteria


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(a) In general A nominated area shall be eligible for designation under section 1391 only if it meets the following criteria: (1) Population The nominated area has a maximum population of (A) in the case of an urban area, the lesser of (i) 200,000, or (ii) the greater of 50,000 or 10 percent of the population of the most populous city located within the nominated area, and (B) in the case of a rural area, 30,000. (2) Distress The nominated area is one of pervasive poverty, unemployment, and general distress. (3) Size The nominated area (A) does not exceed 20 square miles if an urban area or 1,000 square miles if a rural area, (B) has a boundary which is continuous, or, except in the case of a rural area located in more than 1 State, consists of not more than 3 noncontiguous parcels, (C) (i) in the case of an urban area, is located entirely within no more than 2 contiguous States, and

(ii) in the case of a rural area, is located entirely within no more than 3 contiguous States, and (D) does not include any portion of a central business district (as such term is used for purposes of the most recent Census of Retail Trade) unless the poverty rate for each population census tract in such district is not less than 35 percent (30 percent in the case of an enterprise community). (4) Poverty rate The poverty rate (A) for each population census tract within the nominated area is not less than 20 percent, (B) for at least 90 percent of the population census tracts within the nominated area is not less than 25 percent, and (C) for at least 50 percent of the population census tracts within the nominated area is not less than 35 percent. (b) Special rules relating to determination of poverty rate For purposes of subsection (a)(4) (1) Treatment of census tracts with small populations (A) Tracts with no population In the case of a population census tract with no population (i) such tract shall be treated as having a poverty rate which meets the requirements of subparagraphs (A) and (B) of subsection (a)(4), but (ii) such tract shall be treated as having a zero poverty rate for purposes of applying subparagraph (C) thereof. (B) Tracts with populations of less than 2,000 A population census tract with a population of less than 2,000 shall be treated as having a poverty rate which meets the requirements of subparagraphs (A) and (B) of subsection (a)(4) if more than 75 percent of such tract is zoned for commercial or industrial use. (2) Discretion to adjust requirements for enterprise communities In determining whether a nominated area is eligible for designation as an enterprise community, the appropriate Secretary may, where necessary to carry out the purposes of this subchapter, reduce by 5 percentage points one of the following thresholds for not more than 10 percent of the population census tracts (or, if fewer, 5 population census tracts) in the nominated area: (A) The 20 percent threshold in subsection (a)(4)(A). (B) The 25 percent threshold in subsection (a)(4)(B). (C) The 35 percent threshold in subsection (a)(4)(C). If the appropriate Secretary elects to reduce the threshold under subparagraph (C), such Secretary may (in lieu of applying the preceding sentence) reduce by 10 percentage points the threshold under subparagraph (C) for 3 population census tracts. (3) Each noncontiguous area must satisfy poverty rate rule A nominated area may not include a noncontiguous parcel unless such parcel separately meets (subject to paragraphs (1) and (2)) the criteria set forth in subsection (a)(4). (4) Areas not within census tracts In the case of an area which is not tracted for population census tracts, the equivalent county divisions (as defined by the Bureau of the Census for purposes of defining poverty areas) shall be used for purposes of determining poverty rates. (c) Factors to consider From among the nominated areas eligible for designation under section 1391by the appropriate Secretary, such appropriate Secretary shall make designations of empowerment zones and enterprise communities on the basis of (1) the effectiveness of the strategic plan submitted pursuant to section1391 (f)(2) and the assurances made pursuant to section 1391 (e)(3), and (2) criteria specified by the appropriate Secretary. (d) Special eligibility for nominated areas located in Alaska or Hawaii A nominated area in Alaska or Hawaii shall be treated as meeting the requirements of paragraphs (2), (3), and (4) of subsection (a) if for each census tract or block group within such area 20 percent or more of the families have income which is 50 percent or less of the statewide median family income (as determined under section 143).

1393. Definitions and special rules


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(a) In general For purposes of this subchapter (1) Appropriate Secretary The term appropriate Secretary means (A) the Secretary of Housing and Urban Development in the case of any nominated area which is located in an urban area, and (B) the Secretary of Agriculture in the case of any nominated area which is located in a rural area. (2) Rural area The term rural area means any area which is (A) outside of a metropolitan statistical area (within the meaning of section 143 (k)(2)(B)), or (B) determined by the Secretary of Agriculture, after consultation with the Secretary of Commerce, to be a rural area. (3) Urban area The term urban area means an area which is not a rural area. (4) Special rules for Indian reservations (A) In general No empowerment zone or enterprise community may include any area within an Indian reservation. (B) Indian reservation defined The term Indian reservation has the meaning given such term by section 168 (j)(6). (5) Local government The term local government means (A) any county, city, town, township, parish, village, or other general purpose political subdivision of a State, and (B) any combination of political subdivisions described in subparagraph (A) recognized by the appropriate Secretary. (6) Nominated area The term nominated area means an area which is nominated by 1 or more local governments and the State or States in which it is located for designation under section 1391. (7) Governments If more than 1 State or local government seeks to nominate an area under this part, any reference to, or requirement of, this subchapter shall apply to all such governments. (8) Special rule An area shall be treated as nominated by a State and a local government if it is nominated by an economic development corporation chartered by the State. (9) Use of census data Population and poverty rate shall be determined by the most recent decennial census data available. (b) Empowerment zone; enterprise community For purposes of this title, the terms empowerment zone and enterprise community mean areas designated as such under section 1391.

PART IITAX-EXEMPT FACILITY BONDS FOR EMPOWERMENT ZONES AND ENTERPRISE COMMUNITIES
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1394. Tax-exempt enterprise zone facility bonds

1394. Tax-exempt enterprise zone facility bonds


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(a) In general For purposes of part IV of subchapter B of this chapter (relating to tax exemption requirements for State and local bonds), the term exempt facility bond includes any bond issued as part of an issue 95 percent or more of the net proceeds (as defined in section 150(a)(3)) of which are to be used to provide any enterprise zone facility. (b) Enterprise zone facility For purposes of this section (1) In general The term enterprise zone facility means any qualified zone property the principal user of which is an enterprise zone business, and any land which is functionally related and subordinate to such property. (2) Qualified zone property The term qualified zone property has the meaning given such term by section 1397D; except that (A) the references to empowerment zones shall be treated as including references to enterprise communities, and (B) section 1397D (a)(2) shall be applied by substituting an amount equal to 15 percent of the adjusted basis for an amount equal to the adjusted basis. (3) Enterprise zone business (A) In general Except as modified in this paragraph, the term enterprise zone business has the meaning given such term by section 1397C. (B) Modifications In applying section 1397C for purposes of this section (i) Businesses in enterprise communities eligible References in section 1397C to empowerment zones shall be treated as including references to enterprise communities. (ii) Waiver of requirements during startup period A business shall not fail to be treated as an enterprise zone business during the startup period if (I) as of the beginning of the startup period, it is reasonably expected that such business will be an enterprise zone business (as defined in section 1397C as modified by this paragraph) at the end of such period, and (II) such business makes bona fide efforts to be such a business. (iii) Reduced requirements after testing period A business shall not fail to be treated as an enterprise zone business for any taxable year beginning after the testing period by reason of failing to meet any requirement of subsection (b) or (c) of section 1397Cif at least 35 percent of the employees of such business for such year are residents of an empowerment zone or an enterprise community. The preceding sentence shall not apply to any business which is not a qualified business by reason of paragraph (1), (4), or (5) of section 1397C (d). (C) Definitions relating to subparagraph (B) For purposes of subparagraph (B) (i) Startup period The term startup period means, with respect to any property being provided for any business, the period before the first taxable year beginning more than 2 years after the later of (I) the date of issuance of the issue providing such property, or (II) the date such property is first placed in service after such issuance (or, if earlier, the date which is 3 years after the date described in subclause (I)). (ii) Testing period The term testing period means the first 3 taxable years beginning after the startup period. (D) Portions of business may be enterprise zone business

The term enterprise zone business includes any trades or businesses which would qualify as an enterprise zone business (determined after the modifications of subparagraph (B)) if such trades or businesses were separately incorporated. (c) Limitation on amount of bonds (1) In general Subsection (a) shall not apply to any issue if the aggregate amount of outstanding enterprise zone facility bonds allocable to any person (taking into account such issue) exceeds (A) $3,000,000 with respect to any 1 empowerment zone or enterprise community, or (B) $20,000,000 with respect to all empowerment zones and enterprise communities. (2) Aggregate enterprise zone facility bond benefit For purposes of paragraph (1), the aggregate amount of outstanding enterprise zone facility bonds allocable to any person shall be determined under rules similar to the rules of section 144 (a)(10), taking into account only bonds to which subsection (a) applies. (d) Acquisition of land and existing property permitted The requirements of sections 147 (c)(1)(A) and 147 (d) shall not apply to any bond described in subsection (a). (e) Penalty for ceasing to meet requirements (1) Failures corrected An issue which fails to meet 1 or more of the requirements of subsections (a) and (b) shall be treated as meeting such requirements if (A) the issuer and any principal user in good faith attempted to meet such requirements, and (B) any failure to meet such requirements is corrected within a reasonable period after such failure is first discovered. (2) Loss of deductions where facility ceases to be qualified No deduction shall be allowed under this chapter for interest on any financing provided from any bond to which subsection (a) applies with respect to any facility to the extent such interest accrues during the period beginning on the first day of the calendar year which includes the date on which (A) substantially all of the facility with respect to which the financing was provided ceases to be used in an empowerment zone or enterprise community, or (B) the principal user of such facility ceases to be an enterprise zone business (as defined in subsection (b)). (3) Exception if zone ceases Paragraphs (1) and (2) shall not apply solely by reason of the termination or revocation of a designation as an empowerment zone or an enterprise community. (4) Exception for bankruptcy Paragraphs (1) and (2) shall not apply to any cessation resulting from bankruptcy. (f) Bonds for empowerment zones designated under section 1391 (g) (1) In general In the case of a new empowerment zone facility bond (A) such bond shall not be treated as a private activity bond for purposes of section 146, and (B) subsection (c) of this section shall not apply. (2) Limitation on amount of bonds (A) In general Paragraph (1) shall apply to a new empowerment zone facility bond only if such bond is designated for purposes of this subsection by the local government which nominated the area to which such bond relates. (B) Limitation on bonds designated The aggregate face amount of bonds which may be designated under subparagraph (A) with respect to any empowerment zone shall not exceed (i) $60,000,000 if such zone is in a rural area, (ii) $130,000,000 if such zone is in an urban area and the zone has a population of less than 100,000, and (iii) $230,000,000 if such zone is in an urban area and the zone has a population of at least 100,000. (C) Special rules (i) Coordination with limitation in subsection (c) Bonds to which paragraph (1) applies shall not be taken into account in applying the limitation of subsection (c) to other bonds.

(ii) Current refunding not taken into account In the case of a refunding (or series of refundings) of a bond designated under this paragraph, the refunding obligation shall be treated as designated under this paragraph (and shall not be taken into account in applying subparagraph (B)) if (I) the amount of the refunding bond does not exceed the outstanding amount of the refunded bond, and (II) the refunded bond is redeemed not later than 90 days after the date of issuance of the refunding bond. (3) Empowerment zone facility bond For purposes of this subsection, the term empowerment zone facility bond means any bond which would be described in subsection (a) if (A) in the case of obligations issued before January 1, 2002, only empowerment zones designated under section 1391 (g) were taken into account under sections 1397C and 1397D, and (B) in the case of obligations issued after December 31, 2001, all empowerment zones (other than the District of Columbia Enterprise Zone) were taken into account under sections 1397C and 1397D.

PART IIIADDITIONAL INCENTIVES FOR EMPOWERMENT ZONES


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Subpart AEmpowerment Zone Employment Credit ( 13961397) Subpart BAdditional Expensing ( 1397A)

Subpart CNonrecognition of Gain on Rollover of Empowerment Zone Investments ( 1397B) Subpart DGeneral Provisions ( 1397C1397D)

Subpart AEmpowerment Zone Employment Credit


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1396. Empowerment zone employment credit 1397. Other definitions and special rules

1396. Empowerment zone employment credit


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(a) Amount of credit For purposes of section 38, the amount of the empowerment zone employment credit determined under this section with respect to any employer for any taxable year is the applicable percentage of the qualified zone wages paid or incurred during the calendar year which ends with or within such taxable year. (b) Applicable percentage For purposes of this section, the applicable percentage is 20 percent. (c) Qualified zone wages

(1) In general For purposes of this section, the term qualified zone wages means any wages paid or incurred by an employer for services performed by an employee while such employee is a qualified zone employee. (2) Only first $15,000 of wages per year taken into account With respect to each qualified zone employee, the amount of qualified zone wages which may be taken into account for a calendar year shall not exceed $15,000. (3) Coordination with work opportunity credit (A) In general The term qualified zone wages shall not include wages taken into account in determining the credit under section 51. (B) Coordination with paragraph (2) The $15,000 amount in paragraph (2) shall be reduced for any calendar year by the amount of wages paid or incurred during such year which are taken into account in determining the credit under section 51. (d) Qualified zone employee For purposes of this section (1) In general Except as otherwise provided in this subsection, the term qualified zone employee means, with respect to any period, any employee of an employer if (A) substantially all of the services performed during such period by such employee for such employer are performed within an empowerment zone in a trade or business of the employer, and (B) the principal place of abode of such employee while performing such services is within such empowerment zone. (2) Certain individuals not eligible The term qualified zone employee shall not include (A) any individual described in subparagraph (A), (B), or (C) of section 51 (i)(1), (B) any 5-percent owner (as defined in section 416 (i)(1)(B)), (C) any individual employed by the employer for less than 90 days, (D) any individual employed by the employer at any facility described in section 144 (c)(6) (B), and (E) any individual employed by the employer in a trade or business the principal activity of which is farming (within the meaning of subparagraph (A) or (B) of section 2032A (e)(5)), but only if, as of the close of the taxable year, the sum of (i) the aggregate unadjusted bases (or, if greater, the fair market value) of the assets owned by the employer which are used in such a trade or business, and (ii) the aggregate value of assets leased by the employer which are used in such a trade or business (as determined under regulations prescribed by the Secretary), exceeds $500,000. (3) Special rules related to termination of employment (A) In general Paragraph (2)(C) shall not apply to (i) a termination of employment of an individual who before the close of the period referred to in paragraph (2)(C) becomes disabled to perform the services of such employment unless such disability is removed before the close of such period and the taxpayer fails to offer reemployment to such individual, or (ii) a termination of employment of an individual if it is determined under the applicable State unemployment compensation law that the termination was due to the misconduct of such individual. (B) Changes in form of business For purposes of paragraph (2)(C), the employment relationship between the taxpayer and an employee shall not be treated as terminated (i) by a transaction to which section 381 (a) applies if the employee continues to be employed by the acquiring corporation, or (ii) by reason of a mere change in the form of conducting the trade or business of the taxpayer if the employee continues to be employed in such trade or business and the taxpayer retains a substantial interest in such trade or business.

1397. Other definitions and special rules


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(a) Wages For purposes of this subpart (1) In general The term wages has the same meaning as when used in section 51. (2) Certain training and educational benefits (A) In general The following amounts shall be treated as wages paid to an employee: (i) Any amount paid or incurred by an employer which is excludable from the gross income of an employee under section127, but only to the extent paid or incurred to a person not related to the employer. (ii) In the case of an employee who has not attained the age of 19, any amount paid or incurred by an employer for any youth training program operated by such employer in conjunction with local education officials. (B) Related person A person is related to any other person if the person bears a relationship to such other person specified in section 267 (b) or 707(b)(1), or such person and such other person are engaged in trades or businesses under common control (within the meaning of subsections (a) and (b) of section 52). For purposes of the preceding sentence, in applying section 267 (b) or 707 (b) (1), 10 percent shall be substituted for 50 percent. (b) Controlled groups For purposes of this subpart (1) all employers treated as a single employer under subsection (a) or (b) of section 52 shall be treated as a single employer for purposes of this subpart, and (2) the credit (if any) determined under section 1396 with respect to each such employer shall be its proportionate share of the wages giving rise to such credit. (c) Certain other rules made applicable For purposes of this subpart, rules similar to the rules of section 51 (k) and subsections (c), (d), and (e) of section 52 shall apply.

Subpart BAdditional Expensing


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1397A. Increase in expensing under section 179

1397A. Increase in expensing under section 179


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(a) General rule In the case of an enterprise zone business, for purposes of section 179 (1) the limitation under section 179 (b)(1) shall be increased by the lesser of (A) $35,000, or (B) the cost of section 179 property which is qualified zone property placed in service during the taxable year, and

(2) the amount taken into account under section 179 (b)(2) with respect to any section 179 property which is qualified zone property shall be 50 percent of the cost thereof. (b) Recapture Rules similar to the rules under section 179 (d)(10) shall apply with respect to any qualified zone property which ceases to be used in an empowerment zone by an enterprise zone business.

Subpart CNonrecognition of Gain on Rollover of Empowerment Zone Investments


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1397B. Nonrecognition of gain on rollover of empowerment zone investments

1397B. Nonrecognition of gain on rollover of empowerment zone investments


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(a) Nonrecognition of gain In the case of any sale of a qualified empowerment zone asset held by the taxpayer for more than 1 year and with respect to which such taxpayer elects the application of this section, gain from such sale shall be recognized only to the extent that the amount realized on such sale exceeds (1) the cost of any qualified empowerment zone asset (with respect to the same zone as the asset sold) purchased by the taxpayer during the 60-day period beginning on the date of such sale, reduced by (2) any portion of such cost previously taken into account under this section. (b) Definitions and special rules For purposes of this section (1) Qualified empowerment zone asset (A) In general The term qualified empowerment zone asset means any property which would be a qualified community asset (as defined in section1400F) if in section 1400F (i) references to empowerment zones were substituted for references to renewal communities, (ii) references to enterprise zone businesses (as defined in section 1397C) were substituted for references to renewal community businesses, and (iii) the date of the enactment of this paragraph were substituted for December 31, 2001 each place it appears. (B) Treatment of DC zone The District of Columbia Enterprise Zone shall not be treated as an empowerment zone for purposes of this section. (2) Certain gain not eligible for rollover This section shall not apply to (A) any gain which is treated as ordinary income for purposes of this subtitle, and (B) any gain which is attributable to real property, or an intangible asset, which is not an integral part of an enterprise zone business. (3) Purchase

A taxpayer shall be treated as having purchased any property if, but for paragraph (4), the unadjusted basis of such property in the hands of the taxpayer would be its cost (within the meaning of section 1012). (4) Basis adjustments If gain from any sale is not recognized by reason of subsection (a), such gain shall be applied to reduce (in the order acquired) the basis for determining gain or loss of any qualified empowerment zone asset which is purchased by the taxpayer during the 60-day period described in subsection (a). This paragraph shall not apply for purposes of section1202. (5) Holding period For purposes of determining whether the nonrecognition of gain under subsection (a) applies to any qualified empowerment zone asset which is sold (A) the taxpayers holding period for such asset and the asset referred to in subsection (a) (1) shall be determined without regard to section 1223, and (B) only the first year of the taxpayers holding period for the asset referred to in subsection (a)(1) shall be taken into account for purposes of paragraphs (2)(A)(iii), (3)(C), and (4)(A) (iii) of section1400F (b).

Subpart DGeneral Provisions


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1397C. Enterprise zone business defined 1397D. Qualified zone property defined

1397C. Enterprise zone business defined


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(a) In general For purposes of this part, the term enterprise zone business means (1) any qualified business entity, and (2) any qualified proprietorship. (b) Qualified business entity For purposes of this section, the term qualified business entity means, with respect to any taxable year, any corporation or partnership if for such year (1) every trade or business of such entity is the active conduct of a qualified business within an empowerment zone, (2) at least 50 percent of the total gross income of such entity is derived from the active conduct of such business, (3) a substantial portion of the use of the tangible property of such entity (whether owned or leased) is within an empowerment zone, (4) a substantial portion of the intangible property of such entity is used in the active conduct of any such business, (5) a substantial portion of the services performed for such entity by its employees are performed in an empowerment zone, (6) at least 35 percent of its employees are residents of an empowerment zone, (7) less than 5 percent of the average of the aggregate unadjusted bases of the property of such entity is attributable to collectibles (as defined in section 408 (m)(2)) other than collectibles that are held primarily for sale to customers in the ordinary course of such business, and

(8) less than 5 percent of the average of the aggregate unadjusted bases of the property of such entity is attributable to nonqualified financial property. (c) Qualified proprietorship For purposes of this section, the term qualified proprietorship means, with respect to any taxable year, any qualified business carried on by an individual as a proprietorship if for such year (1) at least 50 percent of the total gross income of such individual from such business is derived from the active conduct of such business in an empowerment zone, (2) a substantial portion of the use of the tangible property of such individual in such business (whether owned or leased) is within an empowerment zone, (3) a substantial portion of the intangible property of such business is used in the active conduct of such business, (4) a substantial portion of the services performed for such individual in such business by employees of such business are performed in an empowerment zone, (5) at least 35 percent of such employees are residents of an empowerment zone, (6) less than 5 percent of the average of the aggregate unadjusted bases of the property of such individual which is used in such business is attributable to collectibles (as defined in section 408 (m)(2)) other than collectibles that are held primarily for sale to customers in the ordinary course of such business, and (7) less than 5 percent of the average of the aggregate unadjusted bases of the property of such individual which is used in such business is attributable to nonqualified financial property. For purposes of this subsection, the term employee includes the proprietor. (d) Qualified business For purposes of this section (1) In general Except as otherwise provided in this subsection, the term qualified business means any trade or business. (2) Rental of real property The rental to others of real property located in an empowerment zone shall be treated as a qualified business if and only if (A) the property is not residential rental property (as defined in section 168 (e)(2)), and (B) at least 50 percent of the gross rental income from the real property is from enterprise zone businesses. For purposes of subparagraph (B), the lessor of the property may rely on a lessees certification that such lessee is an enterprise zone business. (3) Rental of tangible personal property The rental to others of tangible personal property shall be treated as a qualified business if and only if at least 50 percent of the rental of such property is by enterprise zone businesses or by residents of an empowerment zone. (4) Treatment of business holding intangibles The term qualified business shall not include any trade or business consisting predominantly of the development or holding of intangibles for sale or license. (5) Certain businesses excluded The term qualified business shall not include (A) any trade or business consisting of the operation of any facility described in section 144 (c)(6)(B), and (B) any trade or business the principal activity of which is farming (within the meaning of subparagraphs [1] (A) or (B) of section 2032A(e)(5)), but only if, as of the close of the taxable year, the sum of (i) the aggregate unadjusted bases (or, if greater, the fair market value) of the assets owned by the taxpayer which are used in such a trade or business, and (ii) the aggregate value of assets leased by the taxpayer which are used in such a trade or business, exceeds $500,000. For purposes of subparagraph (B), rules similar to the rules of section 1397(b) shall apply. (e) Nonqualified financial property

For purposes of this section, the term nonqualified financial property means debt, stock, partnership interests, options, futures contracts, forward contracts, warrants, notional principal contracts, annuities, and other similar property specified in regulations; except that such term shall not include (1) reasonable amounts of working capital held in cash, cash equivalents, or debt instruments with a term of 18 months or less, or (2) debt instruments described in section 1221 (a)(4). (f) Treatment of businesses straddling census tract lines For purposes of this section, if (1) a business entity or proprietorship uses real property located within an empowerment zone, (2) the business entity or proprietorship also uses real property located outside the empowerment zone, (3) the amount of real property described in paragraph (1) is substantial compared to the amount of real property described in paragraph (2), and (4) the real property described in paragraph (2) is contiguous to part or all of the real property described in paragraph (1), then all the services performed by employees, all business activities, all tangible property, and all intangible property of the business entity or proprietorship that occur in or is located on the real property described in paragraphs (1) and (2) shall be treated as occurring or situated in an empowerment zone.

[1] So in original. Probably should be subparagraph.

1397D. Qualified zone property defined


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(a) General rule For purposes of this part (1) In general The term qualified zone property means any property to which section168 applies (or would apply but for section 179) if (A) such property was acquired by the taxpayer by purchase (as defined in section 179 (d) (2)) after the date on which the designation of the empowerment zone took effect, (B) the original use of which in an empowerment zone commences with the taxpayer, and (C) substantially all of the use of which is in an empowerment zone and is in the active conduct of a qualified business by the taxpayer in such zone. (2) Special rule for substantial renovations In the case of any property which is substantially renovated by the taxpayer, the requirements of subparagraphs (A) and (B) of paragraph (1) shall be treated as satisfied. For purposes of the preceding sentence, property shall be treated as substantially renovated by the taxpayer if, during any 24-month period beginning after the date on which the designation of the empowerment zone took effect, additions to basis with respect to such property in the hands of the taxpayer exceed the greater of (i) an amount equal to the adjusted basis at the beginning of such 24-month period in the hands of the taxpayer, or (ii) $5,000. (b) Special rules for sale-leasebacks For purposes of subsection (a)(1)(B), if property is sold and leased back by the taxpayer within 3 months after the date such property was originally placed in service, such property shall be treated as originally placed in service not earlier than the date on which such property is used under the leaseback.

PART IVINCENTIVES FOR EDUCATION ZONES


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1397E. Credit to holders of qualified zone academy bonds

1397E. Credit to holders of qualified zone academy bonds


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(a) Allowance of credit In the case of an eligible taxpayer who holds a qualified zone academy bond on the credit allowance date of such bond which occurs during the taxable year, there shall be allowed as a credit against the tax imposed by this chapter for such taxable year the amount determined under subsection (b). (b) Amount of credit (1) In general The amount of the credit determined under this subsection with respect to any qualified zone academy bond is the amount equal to the product of (A) the credit rate determined by the Secretary under paragraph (2) for the month in which such bond was issued, multiplied by (B) the face amount of the bond held by the taxpayer on the credit allowance date. (2) Determination During each calendar month, the Secretary shall determine a credit rate which shall apply to bonds issued during the following calendar month. The credit rate for any month is the percentage which the Secretary estimates will permit the issuance of qualified zone academy bonds without discount and without interest cost to the issuer. (c) Limitation based on amount of tax The credit allowed under subsection (a) for any taxable year shall not exceed the excess of (1) the sum of the regular tax liability (as defined in section 26 (b)) plus the tax imposed by section 55, over (2) the sum of the credits allowable under part IV of subchapter A (other than subpart C thereof, relating to refundable credits, and subparts H, I, and J thereof). (d) Qualified zone academy bond For purposes of this section (1) In general The term qualified zone academy bond means any bond issued as part of an issue if (A) 95 percent or more of the proceeds of such issue are to be used for a qualified purpose with respect to a qualified zone academy established by an eligible local education agency, (B) the bond is issued by a State or local government within the jurisdiction of which such academy is located, (C) the issuer (i) designates such bond for purposes of this section, (ii) certifies that it has written assurances that the private business contribution requirement of paragraph (2) will be met with respect to such academy, and (iii) certifies that it has the written approval of the eligible local education agency for such bond issuance, (D) the term of each bond which is part of such issue does not exceed the maximum term permitted under paragraph (3), and (E) the issue meets the requirements of subsections (f), (g), and (h). (2) Private business contribution requirement

(A) In general For purposes of paragraph (1), the private business contribution requirement of this paragraph is met with respect to any issue if the eligible local education agency that established the qualified zone academy has written commitments from private entities to make qualified contributions having a present value (as of the date of issuance of the issue) of not less than 10 percent of the proceeds of the issue. (B) Qualified contributions For purposes of subparagraph (A), the term qualified contribution means any contribution (of a type and quality acceptable to the eligible local education agency) of (i) equipment for use in the qualified zone academy (including state-of-the-art technology and vocational equipment), (ii) technical assistance in developing curriculum or in training teachers in order to promote appropriate market driven technology in the classroom, (iii) services of employees as volunteer mentors, (iv) internships, field trips, or other educational opportunities outside the academy for students, or (v) any other property or service specified by the eligible local education agency. (3) Term requirement During each calendar month, the Secretary shall determine the maximum term permitted under this paragraph for bonds issued during the following calendar month. Such maximum term shall be the term which the Secretary estimates will result in the present value of the obligation to repay the principal on the bond being equal to 50 percent of the face amount of the bond. Such present value shall be determined using as a discount rate the average annual interest rate of tax-exempt obligations having a term of 10 years or more which are issued during the month. If the term as so determined is not a multiple of a whole year, such term shall be rounded to the next highest whole year. (4) Qualified zone academy (A) In general The term qualified zone academy means any public school (or academic program within a public school) which is established by and operated under the supervision of an eligible local education agency to provide education or training below the postsecondary level if (i) such public school or program (as the case may be) is designed in cooperation with business to enhance the academic curriculum, increase graduation and employment rates, and better prepare students for the rigors of college and the increasingly complex workforce, (ii) students in such public school or program (as the case may be) will be subject to the same academic standards and assessments as other students educated by the eligible local education agency, (iii) the comprehensive education plan of such public school or program is approved by the eligible local education agency, and (iv) (I) such public school is located in an empowerment zone or enterprise community (including any such zone or community designated after the date of the enactment of this section), or (II) there is a reasonable expectation (as of the date of issuance of the bonds) that at least 35 percent of the students attending such school or participating in such program (as the case may be) will be eligible for free or reduced-cost lunches under the school lunch program established under the Richard B. Russell National School Lunch Act. (B) Eligible local education agency The term eligible local education agency means any local educational agency as defined in section 9101 of the Elementary and Secondary Education Act of 1965. (5) Qualified purpose The term qualified purpose means, with respect to any qualified zone academy (A) rehabilitating or repairing the public school facility in which the academy is established, (B) providing equipment for use at such academy, (C) developing course materials for education to be provided at such academy, and (D) training teachers and other school personnel in such academy. (6) Eligible taxpayer The term eligible taxpayer means (A) a bank (within the meaning of section 581),

(B) an insurance company to which subchapter L applies, and (C) a corporation actively engaged in the business of lending money. (e) Limitation on amount of bonds designated (1) National limitation There is a national zone academy bond limitation for each calendar year. Such limitation is $400,000,000 for 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, and 2007, and, except as provided in paragraph (4), zero thereafter. (2) Allocation of limitation The national zone academy bond limitation for a calendar year shall be allocated by the Secretary among the States on the basis of their respective populations of individuals below the poverty line (as defined by the Office of Management and Budget). The limitation amount allocated to a State under the preceding sentence shall be allocated by the State education agency to qualified zone academies within such State. (3) Designation subject to limitation amount The maximum aggregate face amount of bonds issued during any calendar year which may be designated under subsection (d)(1) with respect to any qualified zone academy shall not exceed the limitation amount allocated to such academy under paragraph (2) for such calendar year. (4) Carryover of unused limitation If for any calendar year (A) the limitation amount for any State, exceeds (B) the amount of bonds issued during such year which are designated under subsection (d) (1) with respect to qualified zone academies within such State, the limitation amount for such State for the following calendar year shall be increased by the amount of such excess. Any carryforward of a limitation amount may be carried only to the first 2 years (3 years for carryforwards from 1998 or 1999) following the unused limitation year. For purposes of the preceding sentence, a limitation amount shall be treated as used on a first-in first-out basis. (f) Special rules relating to expenditures (1) In general An issue shall be treated as meeting the requirements of this subsection if, as of the date of issuance, the issuer reasonably expects (A) at least 95 percent of the proceeds from the sale of the issue are to be spent for 1 or more qualified purposes with respect to qualified zone academies within the 5-year period beginning on the date of issuance of the qualified zone academy bond, (B) a binding commitment with a third party to spend at least 10 percent of the proceeds from the sale of the issue will be incurred within the 6-month period beginning on the date of issuance of the qualified zone academy bond, and (C) such purposes will be completed with due diligence and the proceeds from the sale of the issue will be spent with due diligence. (2) Extension of period Upon submission of a request prior to the expiration of the period described in paragraph (1) (A), the Secretary may extend such period if the issuer establishes that the failure to satisfy the 5-year requirement is due to reasonable cause and the related purposes will continue to proceed with due diligence. (3) Failure to spend required amount of bond proceeds within 5 years To the extent that less than 95 percent of the proceeds of such issue are expended by the close of the 5-year period beginning on the date of issuance (or if an extension has been obtained under paragraph (2), by the close of the extended period), the issuer shall redeem all of the nonqualified bonds within 90 days after the end of such period. For purposes of this paragraph, the amount of the nonqualified bonds required to be redeemed shall be determined in the same manner as under section 142. (g) Special rules relating to arbitrage An issue shall be treated as meeting the requirements of this subsection if the issuer satisfies the arbitrage requirements of section 148 with respect to proceeds of the issue. (h) Reporting Issuers of qualified academy zone bonds shall submit reports similar to the reports required under section 149 (e).

(i) Other definitions For purposes of this section (1) Credit allowance date The term credit allowance date means, with respect to any issue, the last day of the 1-year period beginning on the date of issuance of such issue and the last day of each successive 1year period thereafter. (2) Bond The term bond includes any obligation. (3) State The term State includes the District of Columbia and any possession of the United States. (j) Credit included in gross income Gross income includes the amount of the credit allowed to the taxpayer under this section (determined without regard to subsection (c)). (k) Credit treated as nonrefundable bondholder credit For purposes of this title, the credit allowed by this section shall be treated as a credit allowable under subpart H of part IV of subchapter A of this chapter. (l) S corporations In the case of a qualified zone academy bond held by an S corporation which is an eligible taxpayer (1) each shareholder shall take into account such shareholders pro rata share of the credit, and (2) no basis adjustments to the stock of the corporation shall be made under section 1367 on account of this section. (m) Termination This section shall not apply to any obligation issued after the date of the enactment of the Tax Extenders and Alternative Minimum Tax Relief Act of 2008.

PART VREGULATIONS
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1397F. Regulations

1397F. Regulations
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The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the purposes of parts II and III, including (1) regulations limiting the benefit of parts II and III in circumstances where such benefits, in combination with benefits provided under other Federal programs, would result in an activity being 100 percent or more subsidized by the Federal Government, (2) regulations preventing abuse of the provisions of parts II and III, and (3) regulations dealing with inadvertent failures of entities to be enterprise zone businesses.

Subchapter VTitle 11 Cases


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1398. Rules relating to individuals title 11 cases 1399. No separate taxable entities for partnerships, corporations, etc.

1398. Rules relating to individuals title 11 cases


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(a) Cases to which section applies Except as provided in subsection (b), this section shall apply to any case under chapter 7 (relating to liquidations) or chapter 11 (relating to reorganizations) of title 11 of the United States Code in which the debtor is an individual. (b) Exceptions where case is dismissed, etc. (1) Section does not apply where case is dismissed This section shall not apply if the case under chapter 7 or 11 of title 11 of the United States Code is dismissed. (2) Section does not apply at partnership level For purposes of subsection (a), a partnership shall not be treated as an individual, but the interest in a partnership of a debtor who is an individual shall be taken into account under this section in the same manner as any other interest of the debtor. (c) Computation and payment of tax; basic standard deduction (1) Computation and payment of tax Except as otherwise provided in this section, the taxable income of the estate shall be computed in the same manner as for an individual. The tax shall be computed on such taxable income and shall be paid by the trustee. (2) Tax rates The tax on the taxable income of the estate shall be determined under subsection (d) of section 1. (3) Basic standard deduction In the case of an estate which does not itemize deductions, the basic standard deduction for the estate for the taxable year shall be the same as for a married individual filing a separate return for such year. (d) Taxable year of debtors (1) General rule Except as provided in paragraph (2), the taxable year of the debtor shall be determined without regard to the case under title 11 of the United States Code to which this section applies. (2) Election to terminate debtors year when case commences (A) In general Notwithstanding section 442, the debtor may (without the approval of the Secretary) elect to treat the debtors taxable year which includes the commencement date as 2 taxable years (i) the first of which ends on the day before the commencement date, and (ii) the second of which begins on the commencement date. (B) Spouse may join in election In the case of a married individual (within the meaning of section7703), the spouse may elect to have the debtors election under subparagraph (A) also apply to the spouse, but only if the debtor and the spouse file a joint return for the taxable year referred to in subparagraph (A) (i). (C) No election where debtor has no assets No election may be made under subparagraph (A) by a debtor who has no assets other than property which the debtor may treat as exempt property under section 522 of title 11 of the United States Code. (D) Time for making election

An election under subparagraph (A) or (B) may be made only on or before the due date for filing the return for the taxable year referred to in subparagraph (A)(i). Any such election, once made, shall be irrevocable. (E) Returns A return shall be made for each of the taxable years specified in subparagraph (A). (F) Annualization For purposes of subsections (b), (c), and (d) of section 443, a return filed for either of the taxable years referred to in subparagraph (A) shall be treated as a return made under paragraph (1) of subsection (a) of section 443. (3) Commencement date defined For purposes of this subsection, the term commencement date means the day on which the case under title 11 of the United States Code to which this section applies commences. (e) Treatment of income, deductions, and credits (1) Estates share of debtors income The gross income of the estate for each taxable year shall include the gross income of the debtor to which the estate is entitled under title 11 of the United States Code. The preceding sentence shall not apply to any amount received or accrued by the debtor before the commencement date (as defined in subsection (d)(3)). (2) Debtors share of debtors income The gross income of the debtor for any taxable year shall not include any item to the extent that such item is included in the gross income of the estate by reason of paragraph (1). (3) Rule for making determinations with respect to deductions, credits, and employment taxes Except as otherwise provided in this section, the determination of whether or not any amount paid or incurred by the estate (A) is allowable as a deduction or credit under this chapter, or (B) is wages for purposes of subtitle C, shall be made as if the amount were paid or incurred by the debtor and as if the debtor were still engaged in the trades and businesses, and in the activities, the debtor was engaged in before the commencement of the case. (f) Treatment of transfers between debtor and estate (1) Transfer to estate not treated as disposition A transfer (other than by sale or exchange) of an asset from the debtor to the estate shall not be treated as a disposition for purposes of any provision of this title assigning tax consequences to a disposition, and the estate shall be treated as the debtor would be treated with respect to such asset. (2) Transfer from estate to debtor not treated as disposition In the case of a termination of the estate, a transfer (other than by sale or exchange) of an asset from the estate to the debtor shall not be treated as a disposition for purposes of any provision of this title assigning tax consequences to a disposition, and the debtor shall be treated as the estate would be treated with respect to such asset. (g) Estate succeeds to tax attributes of debtor The estate shall succeed to and take into account the following items (determined as of the first day of the debtors taxable year in which the case commences) of the debtor (1) Net operating loss carryovers The net operating loss carryovers determined under section 172. (2) Charitable contributions carryovers The carryover of excess charitable contributions determined under section 170 (d)(1). (3) Recovery of tax benefit items Any amount to which section 111 (relating to recovery of tax benefit items) applies. (4) Credit carryovers, etc. The carryovers of any credit, and all other items which, but for the commencement of the case, would be required to be taken into account by the debtor with respect to any credit. (5) Capital loss carryovers The capital loss carryover determined under section 1212. (6) Basis, holding period, and character of assets In the case of any asset acquired (other than by sale or exchange) by the estate from the debtor, the basis, holding period, and character it had in the hands of the debtor.

(7) Method of accounting The method of accounting used by the debtor. (8) Other attributes Other tax attributes of the debtor, to the extent provided in regulations prescribed by the Secretary as necessary or appropriate to carry out the purposes of this section. (h) Administration, liquidation, and reorganization expenses; carryovers and carrybacks of certain excess expenses (1) Administration, liquidation, and reorganization expenses Any administrative expense allowed under section 503 of title 11 of the United States Code, and any fee or charge assessed against the estate under chapter 123 of title 28 of the United States Code, to the extent not disallowed under any other provision of this title, shall be allowed as a deduction. (2) Carryback and carryover of excess administrative costs, etc., to estate taxable years (A) Deduction allowed There shall be allowed as a deduction for the taxable year an amount equal to the aggregate of (i) the administrative expense carryovers to such year, plus (ii) the administrative expense carrybacks to such year. (B) Administrative expense loss, etc. If a net operating loss would be created or increased for any estate taxable year if section 172 (c) were applied without the modification contained in paragraph (4) of section 172 (d), then the amount of the net operating loss so created (or the amount of the increase in the net operating loss) shall be an administrative expense loss for such taxable year which shall be an administrative expense carryback to each of the 3 preceding taxable years and an administrative expense carryover to each of the 7 succeeding taxable years. (C) Determination of amount carried to each taxable year The portion of any administrative expense loss which may be carried to any other taxable year shall be determined under section 172 (b)(2), except that for each taxable year the computation under section172 (b)(2) with respect to the net operating loss shall be made before the computation under this paragraph. (D) Administrative expense deductions allowed only to estate The deductions allowable under this chapter solely by reason of paragraph (1), and the deduction provided by subparagraph (A) of this paragraph, shall be allowable only to the estate. (i) Debtor succeeds to tax attributes of estate In the case of a termination of an estate, the debtor shall succeed to and take into account the items referred to in paragraphs (1), (2), (3), (4), (5), and (6) of subsection (g) in a manner similar to that provided in such paragraphs (but taking into account that the transfer is from the estate to the debtor instead of from the debtor to the estate). In addition, the debtor shall succeed to and take into account the other tax attributes of the estate, to the extent provided in regulations prescribed by the Secretary as necessary or appropriate to carry out the purposes of this section. (j) Other special rules (1) Change of accounting period without approval Notwithstanding section 442, the estate may change its annual accounting period one time without the approval of the Secretary. (2) Treatment of certain carrybacks (A) Carrybacks from estate If any carryback year of the estate is a taxable year before the estates first taxable year, the carryback to such carryback year shall be taken into account for the debtors taxable year corresponding to the carryback year. (B) Carrybacks from debtors activities The debtor may not carry back to a taxable year before the debtors taxable year in which the case commences any carryback from a taxable year ending after the case commences. (C) Carryback and carryback year defined For purposes of this paragraph

(i) Carryback The term carryback means a net operating loss carryback under section 172 or a carryback of any credit provided by part IV of subchapter A. (ii) Carryback year The term carryback year means the taxable year to which a carryback is carried.

1399. No separate taxable entities for partnerships, corporations, etc.


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Except in any case to which section 1398 applies, no separate taxable entity shall result from the commencement of a case under title 11 of the United States Code.

Subchapter WDistrict of Columbia Enterprise Zone


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1400. Establishment of DC Zone 1400A. Tax-exempt economic development bonds 1400B. Zero percent capital gains rate 1400C. First-time homebuyer credit for District of Columbia

1400. Establishment of DC Zone


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(a) In general For purposes of this title (1) the applicable DC area is hereby designated as the District of Columbia Enterprise Zone, and (2) except as otherwise provided in this subchapter, the District of Columbia Enterprise Zone shall be treated as an empowerment zone designated under subchapter U. (b) Applicable DC area For purposes of subsection (a), the term applicable DC area means the area consisting of (1) the census tracts located in the District of Columbia which are part of an enterprise community designated under subchapter U before the date of the enactment of this subchapter, and (2) all other census tracts (A) which are located in the District of Columbia, and (B) for which the poverty rate is not less than than [1] 20 percent as determined on the basis of the 1990 census. (c) District of Columbia Enterprise Zone For purposes of this subchapter, the terms District of Columbia Enterprise Zone and DC Zone mean the District of Columbia Enterprise Zone designated by subsection (a). (d) Special rule for application of employment credit

With respect to the DC Zone, section 1396 (d)(1)(B) (relating to empowerment zone employment credit) shall be applied by substituting the District of Columbia for such empowerment zone. (e) Special rule for application of enterprise zone business definition For purposes of this subchapter and for purposes of applying subchapter U with respect to the DC Zone, section 1397C shall be applied without regard to subsections (b)(6) and (c)(5) thereof. (f) Time for which designation applicable (1) In general The designation made by subsection (a) shall apply for the period beginning on January 1, 1998, and ending on December 31, 2009. (2) Coordination with DC enterprise community designated under subchapter U The designation under subchapter U of the census tracts referred to in subsection (b)(1) as an enterprise community shall terminate on December 31, 2009.

[1] So in original. The second than probably should not appear.

1400A. Tax-exempt economic development bonds


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(a) In general In the case of the District of Columbia Enterprise Zone, subparagraph (A) of section 1394 (c) (1) (relating to limitation on amount of bonds) shall be applied by substituting $15,000,000 for $3,000,000 and section 1394 (b)(3)(B)(iii)shall be applied without regard to the employee residency requirement. (b) Period of applicability This section shall apply to bonds issued during the period beginning on January 1, 1998, and ending on December 31, 2009.

1400B. Zero percent capital gains rate


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(a) Exclusion Gross income shall not include qualified capital gain from the sale or exchange of any DC Zone asset held for more than 5 years. (b) DC Zone asset For purposes of this section (1) In general The term DC Zone asset means (A) any DC Zone business stock, (B) any DC Zone partnership interest, and (C) any DC Zone business property. (2) DC Zone business stock (A) In general The term DC Zone business stock means any stock in a domestic corporation which is originally issued after December 31, 1997, if (i) such stock is acquired by the taxpayer, before January 1, 2010, at its original issue (directly or through an underwriter) solely in exchange for cash,

(ii) as of the time such stock was issued, such corporation was a DC Zone business (or, in the case of a new corporation, such corporation was being organized for purposes of being a DC Zone business), and (iii) during substantially all of the taxpayers holding period for such stock, such corporation qualified as a DC Zone business. (B) Redemptions A rule similar to the rule of section 1202 (c)(3) shall apply for purposes of this paragraph. (3) DC Zone partnership interest The term DC Zone partnership interest means any capital or profits interest in a domestic partnership which is originally issued after December 31, 1997, if (A) such interest is acquired by the taxpayer, before January 1, 2010, from the partnership solely in exchange for cash, (B) as of the time such interest was acquired, such partnership was a DC Zone business (or, in the case of a new partnership, such partnership was being organized for purposes of being a DC Zone business), and (C) during substantially all of the taxpayers holding period for such interest, such partnership qualified as a DC Zone business. A rule similar to the rule of paragraph (2)(B) shall apply for purposes of this paragraph. (4) DC Zone business property (A) In general The term DC Zone business property means tangible property if (i) such property was acquired by the taxpayer by purchase (as defined in section 179 (d) (2)) after December 31, 1997, and before January 1, 2010, (ii) the original use of such property in the DC Zone commences with the taxpayer, and (iii) during substantially all of the taxpayers holding period for such property, substantially all of the use of such property was in a DC Zone business of the taxpayer. (B) Special rule for buildings which are substantially improved (i) In general The requirements of clauses (i) and (ii) of subparagraph (A) shall be treated as met with respect to (I) property which is substantially improved by the taxpayer before January 1, 2010, and (II) any land on which such property is located. (ii) Substantial improvement For purposes of clause (i), property shall be treated as substantially improved by the taxpayer only if, during any 24-month period beginning after December 31, 1997, additions to basis with respect to such property in the hands of the taxpayer exceed the greater of (I) an amount equal to the adjusted basis of such property at the beginning of such 24month period in the hands of the taxpayer, or (II) $5,000. (5) Treatment of DC Zone termination The termination of the designation of the DC Zone shall be disregarded for purposes of determining whether any property is a DC Zone asset. (6) Treatment of subsequent purchasers, etc. The term DC Zone asset includes any property which would be a DC Zone asset but for paragraph (2)(A)(i), (3)(A), or (4)(A)(i) or (ii) in the hands of the taxpayer if such property was a DC Zone asset in the hands of a prior holder. (7) 5-year safe harbor If any property ceases to be a DC Zone asset by reason of paragraph (2)(A)(iii), (3)(C), or (4)(A)(iii) after the 5-year period beginning on the date the taxpayer acquired such property, such property shall continue to be treated as meeting the requirements of such paragraph; except that the amount of gain to which subsection (a) applies on any sale or exchange of such property shall not exceed the amount which would be qualified capital gain had such property been sold on the date of such cessation. (c) DC Zone business For purposes of this section, the term DC Zone business means any enterprise zone business (as defined in section 1397C), determined (1) after the application of section 1400 (e), (2) by substituting 80 percent for 50 percent in subsections (b)(2) and (c)(1) of section 1397C, and

(3) by treating no area other than the DC Zone as an empowerment zone or enterprise community. (d) Treatment of zone as including census tracts with 10 percent poverty rate For purposes of applying this section (and for purposes of applying this subchapter and subchapter U with respect to this section), the DC Zone shall be treated as including all census tracts (1) which are located in the District of Columbia, and (2) for which the poverty rate is not less than 10 percent as determined on the basis of the 1990 census. (e) Other definitions and special rules For purposes of this section (1) Qualified capital gain Except as otherwise provided in this subsection, the term qualified capital gain means any gain recognized on the sale or exchange of (A) a capital asset, or (B) property used in the trade or business (as defined in section1231 (b)). (2) Gain before 1998 or after 2014 not qualified The term qualified capital gain shall not include any gain attributable to periods before January 1, 1998, or after December 31, 2014. (3) Certain gain not qualified The term qualified capital gain shall not include any gain which would be treated as ordinary income under section 1245 or under section 1250if section 1250 applied to all depreciation rather than the additional depreciation. (4) Intangibles and land not integral part of DC Zone business The term qualified capital gain shall not include any gain which is attributable to real property, or an intangible asset, which is not an integral part of a DC Zone business. (5) Related party transactions The term qualified capital gain shall not include any gain attributable, directly or indirectly, in whole or in part, to a transaction with a related person. For purposes of this paragraph, persons are related to each other if such persons are described in section 267 (b) or 707 (b) (1). (f) Certain other rules to apply Rules similar to the rules of subsections (g), (h), (i)(2), and (j) of section 1202shall apply for purposes of this section. (g) Sales and exchanges of interests in partnerships and S corporations which are DC Zone businesses In the case of the sale or exchange of an interest in a partnership, or of stock in an S corporation, which was a DC Zone business during substantially all of the period the taxpayer held such interest or stock, the amount of qualified capital gain shall be determined without regard to (1) any gain which is attributable to real property, or an intangible asset, which is not an integral part of a DC Zone business, and (2) any gain attributable to periods before January 1, 1998, or after December 31, 2014.

1400C. First-time homebuyer credit for District of Columbia


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(a) Allowance of credit In the case of an individual who is a first-time homebuyer of a principal residence in the District of Columbia during any taxable year, there shall be allowed as a credit against the tax imposed by this chapter for the taxable year an amount equal to so much of the purchase price of the residence as does not exceed $5,000. (b) Limitation based on modified adjusted gross income

(1) In general The amount allowable as a credit under subsection (a) (determined without regard to this subsection and subsection (d)) for the taxable year shall be reduced (but not below zero) by the amount which bears the same ratio to the credit so allowable as (A) the excess (if any) of (i) the taxpayers modified adjusted gross income for such taxable year, over (ii) $70,000 ($110,000 in the case of a joint return), bears to (B) $20,000. (2) Modified adjusted gross income For purposes of paragraph (1), the term modified adjusted gross income means the adjusted gross income of the taxpayer for the taxable year increased by any amount excluded from gross income under section 911, 931, or 933. (c) First-time homebuyer For purposes of this section (1) In general The term first-time homebuyer means any individual if such individual (and if married, such individuals spouse) had no present ownership interest in a principal residence in the District of Columbia during the 1-year period ending on the date of the purchase of the principal residence to which this section applies. (2) One-time only If an individual is treated as a first-time homebuyer with respect to any principal residence, such individual may not be treated as a first-time homebuyer with respect to any other principal residence. (3) Principal residence The term principal residence has the same meaning as when used in section 121. (d) Carryforward of unused credit (1) Rule for years in which all personal credits allowed against regular and alternative minimum tax In the case of a taxable year to which section 26 (a)(2) applies, if the credit allowable under subsection (a) exceeds the limitation imposed by section 26 (a)(2) for such taxable year reduced by the sum of the credits allowable under subpart A of part IV of subchapter A (other than this section and section 25D), such excess shall be carried to the succeeding taxable year and added to the credit allowable under subsection (a) for such taxable year. (2) Rule for other years In the case of a taxable year to which section 26 (a)(2) does not apply, if the credit allowable under subsection (a) exceeds the limitation imposed by section 26 (a)(1) for such taxable year reduced by the sum of the credits allowable under subpart A of part IV of subchapter A (other than this section and sections 23, 24, 25A (i), 25B, 25D, 30, and 30B, and30D), such excess shall be carried to the succeeding taxable year and added to the credit allowable under subsection (a) for such taxable year. (e) Special rules For purposes of this section (1) Allocation of dollar limitation (A) Married individuals filing separately In the case of a married individual filing a separate return, subsection (a) shall be applied by substituting $2,500 for $5,000. (B) Other taxpayers If 2 or more individuals who are not married purchase a principal residence, the amount of the credit allowed under subsection (a) shall be allocated among such individuals in such manner as the Secretary may prescribe, except that the total amount of the credits allowed to all such individuals shall not exceed $5,000. (2) Purchase (A) In general The term purchase means any acquisition, but only if (i) the property is not acquired from a person whose relationship to the person acquiring it would result in the disallowance of losses under section 267 or 707 (b) (but, in applying section 267(b) and (c) for purposes of this section, paragraph (4) of section267 (c) shall be

treated as providing that the family of an individual shall include only his spouse, ancestors, and lineal descendants), and (ii) the basis of the property in the hands of the person acquiring it is not determined (I) in whole or in part by reference to the adjusted basis of such property in the hands of the person from whom acquired, or (II) under section 1014 (a) (relating to property acquired from a decedent). (B) Construction A residence which is constructed by the taxpayer shall be treated as purchased by the taxpayer on the date the taxpayer first occupies such residence. (3) Purchase price The term purchase price means the adjusted basis of the principal residence on the date such residence is purchased. (4) Coordination with national first-time homebuyers credit No credit shall be allowed under this section to any taxpayer with respect to the purchase of a residence after December 31, 2008, if a credit under section 36 is allowable to such taxpayer (or the taxpayers spouse) with respect to such purchase. (f) Reporting If the Secretary requires information reporting under section 6045 by a person described in subsection (e)(2) thereof to verify the eligibility of taxpayers for the credit allowable by this section, the exception provided by section 6045 (e)(5) shall not apply. (g) Credit treated as nonrefundable personal credit For purposes of this title, the credit allowed by this section shall be treated as a credit allowable under subpart A of part IV of subchapter A of this chapter. (h) Basis adjustment For purposes of this subtitle, if a credit is allowed under this section with respect to the purchase of any residence, the basis of such residence shall be reduced by the amount of the credit so allowed. (i) Application of section This section shall apply to property purchased after August 4, 1997, and before January 1, 2010.

Subchapter XRenewal Communities


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PART IDESIGNATION ( 1400E)

PART IIRENEWAL COMMUNITY CAPITAL GAIN; RENEWAL COMMUNITY BUSINESS ( 1400F1400G) PART IIIADDITIONAL INCENTIVES ( 1400H1400J)

PART IDESIGNATION
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1400E. Designation of renewal communities

1400E. Designation of renewal communities


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(a) Designation (1) Definitions For purposes of this title, the term renewal community means any area (A) which is nominated by 1 or more local governments and the State or States in which it is located for designation as a renewal community (hereafter in this section referred to as a nominated area), and (B) which the Secretary of Housing and Urban Development designates as a renewal community, after consultation with (i) the Secretaries of Agriculture, Commerce, Labor, and the Treasury; [1] the Director of the Office of Management and Budget, and the Administrator of the Small Business Administration, and (ii) in the case of an area on an Indian reservation, the Secretary of the Interior. (2) Number of designations (A) In general Not more than 40 nominated areas may be designated as renewal communities. (B) Minimum designation in rural areas Of the areas designated under paragraph (1), at least 12 must be areas (i) which are within a local government jurisdiction or jurisdictions with a population of less than 50,000, (ii) which are outside of a metropolitan statistical area (within the meaning of section 143 (k) (2)(B)), or (iii) which are determined by the Secretary of Housing and Urban Development, after consultation with the Secretary of Commerce, to be rural areas. (3) Areas designated based on degree of poverty, etc. (A) In general Except as otherwise provided in this section, the nominated areas designated as renewal communities under this subsection shall be those nominated areas with the highest average ranking with respect to the criteria described in subparagraphs (B), (C), and (D) of subsection (c)(3). For purposes of the preceding sentence, an area shall be ranked within each such criterion on the basis of the amount by which the area exceeds such criterion, with the area which exceeds such criterion by the greatest amount given the highest ranking. (B) Exception where inadequate course of action, etc. An area shall not be designated under subparagraph (A) if the Secretary of Housing and Urban Development determines that the course of action described in subsection (d)(2) with respect to such area is inadequate. (C) Preference for enterprise communities and empowerment zones With respect to the first 20 designations made under this section, a preference shall be provided to those nominated areas which are enterprise communities or empowerment zones (and are otherwise eligible for designation under this section). (4) Limitation on designations (A) Publication of regulations The Secretary of Housing and Urban Development shall prescribe by regulation no later than 4 months after the date of the enactment of this section, after consultation with the officials described in paragraph (1)(B) (i) the procedures for nominating an area under paragraph (1)(A), (ii) the parameters relating to the size and population characteristics of a renewal community, and (iii) the manner in which nominated areas will be evaluated based on the criteria specified in subsection (d). (B) Time limitations The Secretary of Housing and Urban Development may designate nominated areas as renewal communities only during the period beginning on the first day of the first month following the month in which the regulations described in subparagraph (A) are prescribed and ending on December 31, 2001. (C) Procedural rules

The Secretary of Housing and Urban Development shall not make any designation of a nominated area as a renewal community under paragraph (2) unless (i) the local governments and the States in which the nominated area is located have the authority (I) to nominate such area for designation as a renewal community, (II) to make the State and local commitments described in subsection (d), and (III) to provide assurances satisfactory to the Secretary of Housing and Urban Development that such commitments will be fulfilled, (ii) a nomination regarding such area is submitted in such a manner and in such form, and contains such information, as the Secretary of Housing and Urban Development shall by regulation prescribe, and (iii) the Secretary of Housing and Urban Development determines that any information furnished is reasonably accurate. (5) Nomination process for Indian reservations For purposes of this subchapter, in the case of a nominated area on an Indian reservation, the reservation governing body (as determined by the Secretary of the Interior) shall be treated as being both the State and local governments with respect to such area. (b) Period for which designation is in effect (1) In general Any designation of an area as a renewal community shall remain in effect during the period beginning on January 1, 2002, and ending on the earliest of (A) December 31, 2009, (B) the termination date designated by the State and local governments in their nomination, or (C) the date the Secretary of Housing and Urban Development revokes such designation. (2) Revocation of designation The Secretary of Housing and Urban Development may revoke the designation under this section of an area if such Secretary determines that the local government or the State in which the area is located (A) has modified the boundaries of the area, or (B) is not complying substantially with, or fails to make progress in achieving, the State or local commitments, respectively, described in subsection (d). (3) Earlier termination of certain benefits if earlier termination of designation If the designation of an area as a renewal community terminates before December 31, 2009, the day after the date of such termination shall be substituted for January 1, 2010 each place it appears in sections 1400Fand 1400J with respect to such area. (c) Area and eligibility requirements (1) In general The Secretary of Housing and Urban Development may designate a nominated area as a renewal community under subsection (a) only if the area meets the requirements of paragraphs (2) and (3) of this subsection. (2) Area requirements A nominated area meets the requirements of this paragraph if (A) the area is within the jurisdiction of one or more local governments, (B) the boundary of the area is continuous, and (C) the area (i) has a population of not more than 200,000 and at least (I) 4,000 if any portion of such area (other than a rural area described in subsection (a)(2) (B)(i)) is located within a metropolitan statistical area (within the meaning of section143 (k) (2)(B)) which has a population of 50,000 or greater, or (II) 1,000 in any other case, or (ii) is entirely within an Indian reservation (as determined by the Secretary of the Interior). (3) Eligibility requirements A nominated area meets the requirements of this paragraph if the State and the local governments in which it is located certify in writing (and the Secretary of Housing and Urban Development, after such review of supporting data as he deems appropriate, accepts such certification) that (A) the area is one of pervasive poverty, unemployment, and general distress,

(B) the unemployment rate in the area, as determined by the most recent available data, was at least 11/2 times the national unemployment rate for the period to which such data relate, (C) the poverty rate for each population census tract within the nominated area is at least 20 percent, and (D) in the case of an urban area, at least 70 percent of the households living in the area have incomes below 80 percent of the median income of households within the jurisdiction of the local government (determined in the same manner as under section 119(b)(2) of the Housing and Community Development Act of 1974). (4) Consideration of other factors The Secretary of Housing and Urban Development, in selecting any nominated area for designation as a renewal community under this section (A) shall take into account (i) the extent to which such area has a high incidence of crime, or (ii) if such area has census tracts identified in the May 12, 1998, report of the Government Accountability Office regarding the identification of economically distressed areas, and (B) with respect to 1 of the areas to be designated under subsection (a)(2)(B), may, in lieu of any criteria described in paragraph (3), take into account the existence of outmigration from the area. (d) Required State and local commitments (1) In general The Secretary of Housing and Urban Development may designate any nominated area as a renewal community under subsection (a) only if (A) the local government and the State in which the area is located agree in writing that, during any period during which the area is a renewal community, such governments will follow a specified course of action which meets the requirements of paragraph (2) and is designed to reduce the various burdens borne by employers or employees in such area, and (B) the economic growth promotion requirements of paragraph (3) are met. (2) Course of action (A) In general A course of action meets the requirements of this paragraph if such course of action is a written document, signed by a State (or local government) and neighborhood organizations, which evidences a partnership between such State or government and community-based organizations and which commits each signatory to specific and measurable goals, actions, and timetables. Such course of action shall include at least 4 of the following: (i) A reduction of tax rates or fees applying within the renewal community. (ii) An increase in the level of efficiency of local services within the renewal community. (iii) Crime reduction strategies, such as crime prevention (including the provision of crime prevention services by nongovernmental entities). (iv) Actions to reduce, remove, simplify, or streamline governmental requirements applying within the renewal community. (v) Involvement in the program by private entities, organizations, neighborhood organizations, and community groups, particularly those in the renewal community, including a commitment from such private entities to provide jobs and job training for, and technical, financial, or other assistance to, employers, employees, and residents from the renewal community. (vi) The gift (or sale at below fair market value) of surplus real property (such as land, homes, and commercial or industrial structures) in the renewal community to neighborhood organizations, community development corporations, or private companies. (B) Recognition of past efforts For purposes of this section, in evaluating the course of action agreed to by any State or local government, the Secretary of Housing and Urban Development shall take into account the past efforts of such State or local government in reducing the various burdens borne by employers and employees in the area involved. (3) Economic growth promotion requirements The economic growth promotion requirements of this paragraph are met with respect to a nominated area if the local government and the State in which such area is located certify in

writing that such government and State (respectively) have repealed or reduced, will not enforce, or will reduce within the nominated area at least 4 of the following: (A) Licensing requirements for occupations that do not ordinarily require a professional degree. (B) Zoning restrictions on home-based businesses which do not create a public nuisance. (C) Permit requirements for street vendors who do not create a public nuisance. (D) Zoning or other restrictions that impede the formation of schools or child care centers. (E) Franchises or other restrictions on competition for businesses providing public services, including taxicabs, jitneys, cable television, or trash hauling. This paragraph shall not apply to the extent that such regulation of businesses and occupations is necessary for and well-tailored to the protection of health and safety. (e) Coordination with treatment of empowerment zones and enterprise communities For purposes of this title, the designation under section 1391 of any area as an empowerment zone or enterprise community shall cease to be in effect as of the date that the designation of any portion of such area as a renewal community takes effect. (f) Definitions and special rules For purposes of this subchapter (1) Governments If more than one government seeks to nominate an area as a renewal community, any reference to, or requirement of, this section shall apply to all such governments. (2) Local government The term local government means (A) any county, city, town, township, parish, village, or other general purpose political subdivision of a State, and (B) any combination of political subdivisions described in subparagraph (A) recognized by the Secretary of Housing and Urban Development. (3) Application of rules relating to census tracts The rules of section 1392 (b)(4) shall apply. (4) Census data Population and poverty rate shall be determined by using 1990 census data. (g) Expansion of designated area based on 2000 census (1) In general At the request of all governments which nominated an area as a renewal community, the Secretary of Housing and Urban Development may expand the area of such community to include any census tract if (A) (i) at the time such community was nominated, such community would have met the requirements of this section using 1990 census data even if such tract had been included in such community, and (ii) such tract has a poverty rate using 2000 census data which exceeds the poverty rate for such tract using 1990 census data, or (B) (i) such community would be described in subparagraph (A)(i) but for the failure to meet one or more of the requirements of paragraphs (2)(C)(i), (3)(C), and (3)(D) of subsection (c) using 1990 census data, (ii) such community, including such tract, has a population of not more than 200,000 using either 1990 census data or 2000 census data, (iii) such tract meets the requirement of subsection (c)(3)(C) using 2000 census data, and (iv) such tract meets the requirement of subparagraph (A)(ii). (2) Exception for certain census tracts with low population in 1990 In the case of any census tract which did not have a poverty rate determined by the Bureau of the Census using 1990 census data, paragraph (1)(B) shall be applied without regard to clause (iv) thereof. (3) Special rule for certain census tracts with low population in 2000 At the request of all governments which nominated an area as a renewal community, the Secretary of Housing and Urban Development may expand the area of such community to include any census tract if

(A) either (i) such tract has no population using 2000 census data, or (ii) no poverty rate for such tract is determined by the Bureau of the Census using 2000 census data, (B) such tract is one of general distress, and (C) such community, including such tract, meets the requirements of subparagraphs (A) and (B) of subsection (c)(2). (4) Period in effect Any expansion under this subsection shall take effect as provided in subsection (b).

[1] So in original. The semicolon probably should be a comma.

PART IIRENEWAL COMMUNITY CAPITAL GAIN; RENEWAL COMMUNITY BUSINESS


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1400F. Renewal community capital gain 1400G. Renewal community business defined

1400F. Renewal community capital gain


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(a) General rule Gross income does not include any qualified capital gain from the sale or exchange of a qualified community asset held for more than 5 years. (b) Qualified community asset For purposes of this section (1) In general The term qualified community asset means (A) any qualified community stock, (B) any qualified community partnership interest, and (C) any qualified community business property. (2) Qualified community stock (A) In general Except as provided in subparagraph (B), the term qualified community stock means any stock in a domestic corporation if (i) such stock is acquired by the taxpayer after December 31, 2001, and before January 1, 2010, at its original issue (directly or through an underwriter) from the corporation solely in exchange for cash, (ii) as of the time such stock was issued, such corporation was a renewal community business (or, in the case of a new corporation, such corporation was being organized for purposes of being a renewal community business), and (iii) during substantially all of the taxpayers holding period for such stock, such corporation qualified as a renewal community business. (B) Redemptions A rule similar to the rule of section 1202 (c)(3) shall apply for purposes of this paragraph. (3) Qualified community partnership interest

The term qualified community partnership interest means any capital or profits interest in a domestic partnership if (A) such interest is acquired by the taxpayer after December 31, 2001, and before January 1, 2010, from the partnership solely in exchange for cash, (B) as of the time such interest was acquired, such partnership was a renewal community business (or, in the case of a new partnership, such partnership was being organized for purposes of being a renewal community business), and (C) during substantially all of the taxpayers holding period for such interest, such partnership qualified as a renewal community business. A rule similar to the rule of paragraph (2)(B) shall apply for purposes of this paragraph. (4) Qualified community business property (A) In general The term qualified community business property means tangible property if (i) such property was acquired by the taxpayer by purchase (as defined in section 179 (d) (2)) after December 31, 2001, and before January 1, 2010, (ii) the original use of such property in the renewal community commences with the taxpayer, and (iii) during substantially all of the taxpayers holding period for such property, substantially all of the use of such property was in a renewal community business of the taxpayer. (B) Special rule for substantial improvements The requirements of clauses (i) and (ii) of subparagraph (A) shall be treated as satisfied with respect to (i) property which is substantially improved by the taxpayer before January 1, 2010, and (ii) any land on which such property is located. The determination of whether a property is substantially improved shall be made under clause (ii) of section 1400B (b)(4)(B), except that December 31, 2001 shall be substituted for December 31, 1997 in such clause. (c) Qualified capital gain For purposes of this section (1) In general Except as otherwise provided in this subsection, the term qualified capital gain means any gain recognized on the sale or exchange of (A) a capital asset, or (B) property used in the trade or business (as defined in section1231 (b)). (2) Gain before 2002 or after 2014 not qualified The term qualified capital gain shall not include any gain attributable to periods before January 1, 2002, or after December 31, 2014. (3) Certain rules to apply Rules similar to the rules of paragraphs (3), (4), and (5) of section 1400B(e) shall apply for purposes of this subsection. (d) Certain rules to apply For purposes of this section, rules similar to the rules of paragraphs (5), (6), and (7) of subsection (b), and subsections (f) and (g), of section 1400B shall apply; except that for such purposes section 1400B (g)(2) shall be applied by substituting January 1, 2002 for January 1, 1998 and December 31, 2014 for December 31, 2014. (e) Regulations The Secretary shall prescribe such regulations as may be appropriate to carry out the purposes of this section, including regulations to prevent the abuse of the purposes of this section.

1400G. Renewal community business defined


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For purposes of this subchapter, the term renewal community business means any entity or proprietorship which would be a qualified business entity or qualified proprietorship under

section 1397C if references to renewal communities were substituted for references to empowerment zones in such section.

PART IIIADDITIONAL INCENTIVES


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1400H. Renewal community employment credit 1400I. Commercial revitalization deduction 1400J. Increase in expensing under section 179

1400H. Renewal community employment credit


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(a) In general Subject to the modification in subsection (b), a renewal community shall be treated as an empowerment zone for purposes of section 1396 with respect to wages paid or incurred after December 31, 2001. (b) Modification In applying section 1396 with respect to renewal communities (1) the applicable percentage shall be 15 percent, and (2) subsection (c) thereof shall be applied by substituting $10,000 for $15,000 each place it appears.

1400I. Commercial revitalization deduction


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(a) General rule At the election of the taxpayer, either (1) one-half of any qualified revitalization expenditures chargeable to capital account with respect to any qualified revitalization building shall be allowable as a deduction for the taxable year in which the building is placed in service, or (2) a deduction for all such expenditures shall be allowable ratably over the 120-month period beginning with the month in which the building is placed in service. (b) Qualified revitalization buildings and expenditures For purposes of this section (1) Qualified revitalization building The term qualified revitalization building means any building (and its structural components) if (A) the building is placed in service by the taxpayer in a renewal community and the original use of the building begins with the taxpayer, or (B) in the case of such building not described in subparagraph (A), such building (i) is substantially rehabilitated (within the meaning of section 47(c)(1)(C)) by the taxpayer, and (ii) is placed in service by the taxpayer after the rehabilitation in a renewal community. (2) Qualified revitalization expenditure

(A) In general The term qualified revitalization expenditure means any amount properly chargeable to capital account for property for which depreciation is allowable under section 168 (without regard to this section) and which is (i) nonresidential real property (as defined in section 168 (e)), or (ii) section 1250 property (as defined in section 1250 (c)) which is functionally related and subordinate to property described in clause (i). (B) Certain expenditures not included (i) Acquisition cost In the case of a building described in paragraph (1)(B), the cost of acquiring the building or interest therein shall be treated as a qualified revitalization expenditure only to the extent that such cost does not exceed 30 percent of the aggregate qualified revitalization expenditures (determined without regard to such cost) with respect to such building. (ii) Credits The term qualified revitalization expenditure does not include any expenditure which the taxpayer may take into account in computing any credit allowable under this title unless the taxpayer elects to take the expenditure into account only for purposes of this section. (c) Dollar limitation The aggregate amount which may be treated as qualified revitalization expenditures with respect to any qualified revitalization building shall not exceed the lesser of (1) $10,000,000, or (2) the commercial revitalization expenditure amount allocated to such building under this section by the commercial revitalization agency for the State in which the building is located. (d) Commercial revitalization expenditure amount (1) In general The aggregate commercial revitalization expenditure amount which a commercial revitalization agency may allocate for any calendar year is the amount of the State commercial revitalization expenditure ceiling determined under this paragraph for such calendar year for such agency. (2) State commercial revitalization expenditure ceiling The State commercial revitalization expenditure ceiling applicable to any State (A) for each calendar year after 2001 and before 2010 is $12,000,000 for each renewal community in the State, and (B) for each calendar year thereafter is zero. (3) Commercial revitalization agency For purposes of this section, the term commercial revitalization agency means any agency authorized by a State to carry out this section. (4) Time and manner of allocations Allocations under this section shall be made at the same time and in the same manner as under paragraphs (1) and (7) of section 42 (h). (e) Responsibilities of commercial revitalization agencies (1) Plans for allocation Notwithstanding any other provision of this section, the commercial revitalization expenditure amount with respect to any building shall be zero unless (A) such amount was allocated pursuant to a qualified allocation plan of the commercial revitalization agency which is approved (in accordance with rules similar to the rules of section 147 (f)(2) (other than subparagraph (B)(ii) thereof)) by the governmental unit of which such agency is a part, and (B) such agency notifies the chief executive officer (or its equivalent) of the local jurisdiction within which the building is located of such allocation and provides such individual a reasonable opportunity to comment on the allocation. (2) Qualified allocation plan For purposes of this subsection, the term qualified allocation plan means any plan (A) which sets forth selection criteria to be used to determine priorities of the commercial revitalization agency which are appropriate to local conditions, (B) which considers (i) the degree to which a project contributes to the implementation of a strategic plan that is devised for a renewal community through a citizen participation process,

(ii) the amount of any increase in permanent, full-time employment by reason of any project, and (iii) the active involvement of residents and nonprofit groups within the renewal community, and (C) which provides a procedure that the agency (or its agent) will follow in monitoring compliance with this section. (f) Special rules (1) Deduction in lieu of depreciation The deduction provided by this section for qualified revitalization expenditures shall (A) with respect to the deduction determined under subsection (a)(1), be in lieu of any depreciation deduction otherwise allowable on account of one-half of such expenditures, and (B) with respect to the deduction determined under subsection (a)(2), be in lieu of any depreciation deduction otherwise allowable on account of all of such expenditures. (2) Basis adjustment, etc. For purposes of sections 1016 and 1250, the deduction under this section shall be treated in the same manner as a depreciation deduction. For purposes of section 1250 (b)(5), the straight line method of adjustment shall be determined without regard to this section. (3) Substantial rehabilitations treated as separate buildings A substantial rehabilitation (within the meaning of section 47(c)(1)(C)) of a building shall be treated as a separate building for purposes of subsection (a). (4) Clarification of allowance of deduction under minimum tax Notwithstanding section 56 (a)(1), the deduction under this section shall be allowed in determining alternative minimum taxable income under section 55. (g) Termination This section shall not apply to any building placed in service after December 31, 2009.

1400J. Increase in expensing under section 179


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(a) In general For purposes of section 1397A (1) a renewal community shall be treated as an empowerment zone, (2) a renewal community business shall be treated as an enterprise zone business, and (3) qualified renewal property shall be treated as qualified zone property. (b) Qualified renewal property For purposes of this section (1) In general The term qualified renewal property means any property to which section 168 applies (or would apply but for section 179) if (A) such property was acquired by the taxpayer by purchase (as defined in section 179 (d) (2)) after December 31, 2001, and before January 1, 2010, and (B) such property would be qualified zone property (as defined in section 1397D) if references to renewal communities were substituted for references to empowerment zones in section 1397D. (2) Certain rules to apply The rules of subsections (a)(2) and (b) of section 1397D shall apply for purposes of this section.

Subchapter YShort-Term Regional Benefits

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PART ITAX BENEFITS FOR NEW YORK LIBERTY ZONE ( 1400L) PART IITAX BENEFITS FOR GO ZONES ( 1400M1400T) PART IIIRECOVERY ZONE BONDS ( 1400U11400U3)

PART ITAX BENEFITS FOR NEW YORK LIBERTY ZONE


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1400L. Tax benefits for New York Liberty Zone

1400L. Tax benefits for New York Liberty Zone


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(a) Expansion of work opportunity tax credit (1) In general For purposes of section 51, a New York Liberty Zone business employee shall be treated as a member of a targeted group. (2) New York Liberty Zone business employee For purposes of this subsection (A) In general The term New York Liberty Zone business employee means, with respect to any period, any employee of a New York Liberty Zone business if substantially all the services performed during such period by such employee for such business are performed in the New York Liberty Zone. (B) Inclusion of certain employees outside the New York Liberty Zone (i) In general In the case of a New York Liberty Zone business described in subclause (II) of subparagraph (C)(i), the term New York Liberty Zone business employee includes any employee of such business (not described in subparagraph (A)) if substantially all the services performed during such period by such employee for such business are performed in the City of New York, New York. (ii) Limitation The number of employees of such a business that are treated as New York Liberty Zone business employees on any day by reason of clause (i) shall not exceed the excess of (I) the number of employees of such business on September 11, 2001, in the New York Liberty Zone, over (II) the number of New York Liberty Zone business employees (determined without regard to this subparagraph) of such business on the day to which the limitation is being applied. The Secretary may require any trade or business to have the number determined under subclause (I) verified by the New York State Department of Labor. (C) New York Liberty Zone business (i) In general The term New York Liberty Zone business means any trade or business which is (I) located in the New York Liberty Zone, or

(II) located in the City of New York, New York, outside the New York Liberty Zone, as a result of the physical destruction or damage of such place of business by the September 11, 2001, terrorist attack. (ii) Credit not allowed for large businesses The term New York Liberty Zone business shall not include any trade or business for any taxable year if such trade or business employed an average of more than 200 employees on business days during the taxable year. (D) Special rules for determining amount of credit For purposes of applying subpart F of part IV of subchapter A of this chapter to wages paid or incurred to any New York Liberty Zone business employee (i) section 51 (a) shall be applied by substituting qualified wages for qualified first-year wages, (ii) the rules of section 52 shall apply for purposes of determining the number of employees under this paragraph, (iii) subsections (c)(4) and (i)(2) of section 51 shall not apply, and (iv) in determining qualified wages, the following shall apply in lieu of section 51 (b): (I) Qualified wages The term qualified wages means wages paid or incurred by the employer to individuals who are New York Liberty Zone business employees of such employer for work performed during calendar year 2002 or 2003. (II) Only first $6,000 of wages per calendar year taken into account The amount of the qualified wages which may be taken into account with respect to any individual shall not exceed $6,000 per calendar year. (b) Special allowance for certain property acquired after September 10, 2001 (1) Additional allowance In the case of any qualified New York Liberty Zone property (A) the depreciation deduction provided by section 167 (a) for the taxable year in which such property is placed in service shall include an allowance equal to 30 percent of the adjusted basis of such property, and (B) the adjusted basis of the qualified New York Liberty Zone property shall be reduced by the amount of such deduction before computing the amount otherwise allowable as a depreciation deduction under this chapter for such taxable year and any subsequent taxable year. (2) Qualified New York Liberty Zone property For purposes of this subsection (A) In general The term qualified New York Liberty Zone property means property (i) (I) which is described in section 168 (k)(2)(A)(i), or (II) which is nonresidential real property, or residential rental property, which is described in subparagraph (B), (ii) substantially all of the use of which is in the New York Liberty Zone and is in the active conduct of a trade or business by the taxpayer in such Zone, (iii) the original use of which in the New York Liberty Zone commences with the taxpayer after September 10, 2001, (iv) which is acquired by the taxpayer by purchase (as defined in section 179 (d)) after September 10, 2001, but only if no written binding contract for the acquisition was in effect before September 11, 2001, and (v) which is placed in service by the taxpayer on or before the termination date. The term termination date means December 31, 2006 (December 31, 2009, in the case of nonresidential real property and residential rental property). (B) Eligible real property Nonresidential real property or residential rental property is described in this subparagraph only to the extent it rehabilitates real property damaged, or replaces real property destroyed or condemned, as a result of the September 11, 2001, terrorist attack. For purposes of the preceding sentence, property shall be treated as replacing real property destroyed or condemned if, as part of an integrated plan, such property replaces real property which is included in a continuous area which includes real property destroyed or condemned. (C) Exceptions

(i) Bonus depreciation property under section 168 (k) Such term shall not include property to which section 168 (k) applies. (ii) Alternative depreciation property The term qualified New York Liberty Zone property shall not include any property described in section 168 (k)(2)(D)(i). (iii) Qualified New York Liberty Zone leasehold improvement property Such term shall not include any qualified New York Liberty Zone leasehold improvement property. (iv) Election out For purposes of this subsection, rules similar to the rules of section 168 (k) (2)(D)(iii) shall apply. (D) Special rules For purposes of this subsection, rules similar to the rules of section168 (k)(2)(E) shall apply, except that clause (i) thereof shall be applied without regard to and before January 1, 2010, and clause (iv) thereof shall be applied by substituting qualified New York Liberty Zone property for qualified property. (E) Allowance against alternative minimum tax For purposes of this subsection, rules similar to the rules of section168 (k)(2)(G) shall apply. (c) 5-year recovery period for depreciation of certain leasehold improvements (1) In general For purposes of section 168, the term 5-year property includes any qualified New York Liberty Zone leasehold improvement property. (2) Qualified New York Liberty Zone leasehold improvement property For purposes of this section, the term qualified New York Liberty Zone leasehold improvement property means qualified leasehold improvement property (as defined in section 168 (k)(3)) if (A) such building is located in the New York Liberty Zone, (B) such improvement is placed in service after September 10, 2001, and before January 1, 2007, and (C) no written binding contract for such improvement was in effect before September 11, 2001. (3) Requirement to use straight line method The applicable depreciation method under section 168 shall be the straight line method in the case of qualified New York Liberty Zone leasehold improvement property. (4) 9-year recovery period under alternative system For purposes of section 168 (g), the class life of qualified New York Liberty Zone leasehold improvement property shall be 9 years. (5) Election out For purposes of this subsection, rules similar to the rules of section 168(k)(2)(D)(iii) shall apply. (d) Tax-exempt bond financing (1) In general For purposes of this title, any qualified New York Liberty Bond shall be treated as an exempt facility bond. (2) Qualified New York Liberty Bond For purposes of this subsection, the term qualified New York Liberty Bond means any bond issued as part of an issue if (A) 95 percent or more of the net proceeds (as defined in section 150(a)(3)) of such issue are to be used for qualified project costs, (B) such bond is issued by the State of New York or any political subdivision thereof, (C) the Governor or the Mayor designates such bond for purposes of this section, and (D) such bond is issued after the date of the enactment of this section and before January 1, 2010. (3) Limitations on amount of bonds (A) Aggregate amount designated The maximum aggregate face amount of bonds which may be designated under this subsection shall not exceed $8,000,000,000, of which not to exceed $4,000,000,000 may be designated by the Governor and not to exceed $4,000,000,000 may be designated by the Mayor. (B) Specific limitations The aggregate face amount of bonds issued which are to be used for

(i) costs for property located outside the New York Liberty Zone shall not exceed $2,000,000,000, (ii) residential rental property shall not exceed $1,600,000,000, and (iii) costs with respect to property used for retail sales of tangible property and functionally related and subordinate property shall not exceed $800,000,000. The limitations under clauses (i), (ii), and (iii) shall be allocated proportionately between the bonds designated by the Governor and the bonds designated by the Mayor in proportion to the respective amounts of bonds designated by each. (C) Movable property No bonds shall be issued which are to be used for movable fixtures and equipment. (4) Qualified project costs For purposes of this subsection (A) In general The term qualified project costs means the cost of acquisition, construction, reconstruction, and renovation of (i) nonresidential real property and residential rental property (including fixed tenant improvements associated with such property) located in the New York Liberty Zone, and (ii) public utility property (as defined in section 168 (i)(10)) located in the New York Liberty Zone. (B) Costs for certain property outside zone included Such term includes the cost of acquisition, construction, reconstruction, and renovation of nonresidential real property (including fixed tenant improvements associated with such property) located outside the New York Liberty Zone but within the City of New York, New York, if such property is part of a project which consists of at least 100,000 square feet of usable office or other commercial space located in a single building or multiple adjacent buildings. (5) Special rules In applying this title to any qualified New York Liberty Bond, the following modifications shall apply: (A) Section 146 (relating to volume cap) shall not apply. (B) Section 147 (d) (relating to acquisition of existing property not permitted) shall be applied by substituting 50 percent for 15 percent each place it appears. (C) Section 148 (f)(4)(C) (relating to exception from rebate for certain proceeds to be used to finance construction expenditures) shall apply to the available construction proceeds of bonds issued under this section. (D) Repayments of principal on financing provided by the issue (i) may not be used to provide financing, and (ii) must be used not later than the close of the 1st semiannual period beginning after the date of the repayment to redeem bonds which are part of such issue. The requirement of clause (ii) shall be treated as met with respect to amounts received within 10 years after the date of issuance of the issue (or, in the case of a refunding bond, the date of issuance of the original bond) if such amounts are used by the close of such 10 years to redeem bonds which are part of such issue. (E) Section 57 (a)(5) shall not apply. (6) Separate issue treatment of portions of an issue This subsection shall not apply to the portion of an issue which (if issued as a separate issue) would be treated as a qualified bond or as a bond that is not a private activity bond (determined without regard to paragraph (1)), if the issuer elects to so treat such portion. (e) Advance refundings of certain tax-exempt bonds (1) In general With respect to a bond described in paragraph (2) issued as part of an issue 90 percent (95 percent in the case of a bond described in paragraph (2)(C)) or more of the net proceeds (as defined in section 150(a)(3)) of which were used to finance facilities located within the City of New York, New York (or property which is functionally related and subordinate to facilities located within the City of New York for the furnishing of water), one additional advanced refunding after the date of the enactment of this section and before January 1, 2006, shall be allowed under the applicable rules of section 149 (d) if

(A) the Governor or the Mayor designates the advance refunding bond for purposes of this subsection, and (B) the requirements of paragraph (4) are met. (2) Bonds described A bond is described in this paragraph if such bond was outstanding on September 11, 2001, and is (A) a State or local bond (as defined in section 103 (c)(1)) which is a general obligation of the City of New York, New York, (B) a State or local bond (as so defined) other than a private activity bond (as defined in section 141 (a)) issued by the New York Municipal Water Finance Authority or the Metropolitan Transportation Authority of the State of New York or the Municipal Assistance Corporation, or (C) a qualified 501(c)(3) bond (as defined in section 145 (a)) which is a qualified hospital bond (as defined in section 145 (c)) issued by or on behalf of the State of New York or the City of New York, New York. (3) Aggregate limit For purposes of paragraph (1), the maximum aggregate face amount of bonds which may be designated under this subsection by the Governor shall not exceed $4,500,000,000 and the maximum aggregate face amount of bonds which may be designated under this subsection by the Mayor shall not exceed $4,500,000,000. (4) Additional requirements The requirements of this paragraph are met with respect to any advance refunding of a bond described in paragraph (2) if (A) no advance refundings of such bond would be allowed under any provision of law after September 11, 2001, (B) the advance refunding bond is the only other outstanding bond with respect to the refunded bond, and (C) the requirements of section 148 are met with respect to all bonds issued under this subsection. (f) Increase in expensing under section 179 (1) In general For purposes of section 179 (A) the limitation under section 179 (b)(1) shall be increased by the lesser of (i) $35,000, or (ii) the cost of section 179 property which is qualified New York Liberty Zone property placed in service during the taxable year, and (B) the amount taken into account under section 179 (b)(2) with respect to any section 179 property which is qualified New York Liberty Zone property shall be 50 percent of the cost thereof. (2) Qualified New York Liberty Zone property For purposes of this subsection, the term qualified New York Liberty Zone property has the meaning given such term by subsection (b)(2), determined without regard to subparagraph (C)(i) thereof. (3) Recapture Rules similar to the rules under section 179 (d)(10) shall apply with respect to any qualified New York Liberty Zone property which ceases to be used in the New York Liberty Zone. (g) Extension of replacement period for nonrecognition of gain Notwithstanding subsections (g) and (h) of section 1033, clause (i) of section1033 (a)(2) (B) shall be applied by substituting 5 years for 2 years with respect to property which is compulsorily or involuntarily converted as a result of the terrorist attacks on September 11, 2001, in the New York Liberty Zone but only if substantially all of the use of the replacement property is in the City of New York, New York. (h) New York Liberty Zone For purposes of this section, the term New York Liberty Zone means the area located on or south of Canal Street, East Broadway (east of its intersection with Canal Street), or Grand Street (east of its intersection with East Broadway) in the Borough of Manhattan in the City of New York, New York. (i) References to Governor and Mayor

For purposes of this section, the terms Governor and Mayor mean the Governor of the State of New York and the Mayor of the City of New York, New York, respectively.

PART IITAX BENEFITS FOR GO ZONES


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1400M. Definitions 1400N. Tax benefits for Gulf Opportunity Zone 1400O. Education tax benefits 1400P. Housing tax benefits 1400Q. Special rules for use of retirement funds 1400R. Employment relief 1400S. Additional tax relief provisions 1400T. Special rules for mortgage revenue bonds

1400M. Definitions
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For purposes of this part (1) Gulf Opportunity Zone The terms Gulf Opportunity Zone and GO Zone mean that portion of the Hurricane Katrina disaster area determined by the President to warrant individual or individual and public assistance from the Federal Government under the Robert T. Stafford Disaster Relief and Emergency Assistance Act by reason of Hurricane Katrina. (2) Hurricane Katrina disaster area The term Hurricane Katrina disaster area means an area with respect to which a major disaster has been declared by the President before September 14, 2005, under section 401 of such Act by reason of Hurricane Katrina. (3) Rita GO Zone The term Rita GO Zone means that portion of the Hurricane Rita disaster area determined by the President to warrant individual or individual and public assistance from the Federal Government under such Act by reason of Hurricane Rita. (4) Hurricane Rita disaster area The term Hurricane Rita disaster area means an area with respect to which a major disaster has been declared by the President before October 6, 2005, under section 401 of such Act by reason of Hurricane Rita. (5) Wilma GO Zone The term Wilma GO Zone means that portion of the Hurricane Wilma disaster area determined by the President to warrant individual or individual and public assistance from the Federal Government under such Act by reason of Hurricane Wilma. (6) Hurricane Wilma disaster area The term Hurricane Wilma disaster area means an area with respect to which a major disaster has been declared by the President before November 14, 2005, under section 401 of such Act by reason of Hurricane Wilma.

1400N. Tax benefits for Gulf Opportunity Zone


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(a) Tax-exempt bond financing (1) In general For purposes of this title (A) any qualified Gulf Opportunity Zone Bond described in paragraph (2)(A)(i) shall be treated as an exempt facility bond, and (B) any qualified Gulf Opportunity Zone Bond described in paragraph (2)(A)(ii) shall be treated as a qualified mortgage bond. (2) Qualified Gulf Opportunity Zone Bond For purposes of this subsection, the term qualified Gulf Opportunity Zone Bond means any bond issued as part of an issue if (A) (i) 95 percent or more of the net proceeds (as defined in section 150(a)(3)) of such issue are to be used for qualified project costs, or (ii) such issue meets the requirements of a qualified mortgage issue, except as otherwise provided in this subsection, (B) such bond is issued by the State of Alabama, Louisiana, or Mississippi, or any political subdivision thereof, (C) such bond is designated for purposes of this section by (i) in the case of a bond which is required under State law to be approved by the bond commission of such State, such bond commission, and (ii) in the case of any other bond, the Governor of such State, (D) such bond is issued after the date of the enactment of this section and before January 1, 2011, and (E) no portion of the proceeds of such issue is to be used to provide any property described in section 144 (c)(6)(B). (3) Limitations on bonds (A) Aggregate amount designated The maximum aggregate face amount of bonds which may be designated under this subsection with respect to any State shall not exceed the product of $2,500 multiplied by the portion of the State population which is in the Gulf Opportunity Zone (as determined on the basis of the most recent census estimate of resident population released by the Bureau of Census before August 28, 2005). (B) Movable property No bonds shall be issued which are to be used for movable fixtures and equipment. (4) Qualified project costs For purposes of this subsection, the term qualified project costs means (A) the cost of any qualified residential rental project (as defined in section 142 (d)) located in the Gulf Opportunity Zone, and (B) the cost of acquisition, construction, reconstruction, and renovation of (i) nonresidential real property (including fixed improvements associated with such property) located in the Gulf Opportunity Zone, and (ii) public utility property (as defined in section 168 (i)(10)) located in the Gulf Opportunity Zone. (5) Special rules In applying this title to any qualified Gulf Opportunity Zone Bond, the following modifications shall apply: (A) Section 142 (d)(1) (defining qualified residential rental project) shall be applied (i) by substituting 60 percent for 50 percent in subparagraph (A) thereof, and (ii) by substituting 70 percent for 60 percent in subparagraph (B) thereof. (B) Section 143 (relating to mortgage revenue bonds: qualified mortgage bond and qualified veterans mortgage bond) shall be applied (i) only with respect to owner-occupied residences in the Gulf Opportunity Zone, (ii) by treating any such residence in the Gulf Opportunity Zone as a targeted area residence, (iii) by applying subsection (f)(3) thereof without regard to subparagraph (A) thereof, and

(iv) by substituting $150,000 for $15,000 in subsection (k)(4) thereof. (C) Except as provided in section 143, repayments of principal on financing provided by the issue of which such bond is a part may not be used to provide financing. (D) Section 146 (relating to volume cap) shall not apply. (E) Section 147 (d)(2) (relating to acquisition of existing property not permitted) shall be applied by substituting 50 percent for 15 percent each place it appears. (F) Section 148 (f)(4)(C) (relating to exception from rebate for certain proceeds to be used to finance construction expenditures) shall apply to the available construction proceeds of bonds which are part of an issue described in paragraph (2)(A)(i). (G) Section 57 (a)(5) (relating to tax-exempt interest) shall not apply. (6) Separate issue treatment of portions of an issue This subsection shall not apply to the portion of an issue which (if issued as a separate issue) would be treated as a qualified bond or as a bond that is not a private activity bond (determined without regard to paragraph (1)), if the issuer elects to so treat such portion. (7) Special rule for repairs and reconstructions (A) In general For purposes of section 143 and this subsection, any qualified GO Zone repair or reconstruction shall be treated as a qualified rehabilitation. (B) Qualified Go Zone repair or reconstruction For purposes of subparagraph (A), the term qualified GO Zone repair or reconstruction means any repair of damage caused by Hurricane Katrina, Hurricane Rita, or Hurricane Wilma to a building located in the Gulf Opportunity Zone, the Rita GO Zone, or the Wilma GO Zone (or reconstruction of such building in the case of damage constituting destruction) if the expenditures for such repair or reconstruction are 25 percent or more of the mortgagors adjusted basis in the residence. For purposes of the preceding sentence, the mortgagors adjusted basis shall be determined as of the completion of the repair or reconstruction or, if later, the date on which the mortgagor acquires the residence. (C) Termination This paragraph shall apply only to owner-financing provided after the date of the enactment of this paragraph and before January 1, 2011. (8) Inclusion of certain counties For purposes of this subsection, the Gulf Opportunity Zone includes Colbert County, Alabama and Dallas County, Alabama. (b) Advance refundings of certain tax-exempt bonds (1) In general With respect to a bond described in paragraph (3), one additional advance refunding after the date of the enactment of this section and before January 1, 2011, shall be allowed under the applicable rules of section 149 (d) if (A) the Governor of the State designates the advance refunding bond for purposes of this subsection, and (B) the requirements of paragraph (5) are met. (2) Certain private activity bonds With respect to a bond described in paragraph (3) which is an exempt facility bond described in paragraph (1) or (2) of section 142 (a), one advance refunding after the date of the enactment of this section and before January 1, 2011, shall be allowed under the applicable rules of section 149 (d) (notwithstanding paragraph (2) thereof) if the requirements of subparagraphs (A) and (B) of paragraph (1) are met. (3) Bonds described A bond is described in this paragraph if such bond was outstanding on August 28, 2005, and is issued by the State of Alabama, Louisiana, or Mississippi, or a political subdivision thereof. (4) Aggregate limit The maximum aggregate face amount of bonds which may be designated under this subsection by the Governor of a State shall not exceed (A) $4,500,000,000 in the case of the State of Louisiana, (B) $2,250,000,000 in the case of the State of Mississippi, and (C) $1,125,000,000 in the case of the State of Alabama. (5) Additional requirements

The requirements of this paragraph are met with respect to any advance refunding of a bond described in paragraph (3) if (A) no advance refundings of such bond would be allowed under this title on or after August 28, 2005, (B) the advance refunding bond is the only other outstanding bond with respect to the refunded bond, and (C) the requirements of section 148 are met with respect to all bonds issued under this subsection. (6) Use of proceeds requirement This subsection shall not apply to any advance refunding of a bond which is issued as part of an issue if any portion of the proceeds of such issue (or any prior issue) was (or is to be) used to provide any property described in section 144 (c)(6)(B). (c) Low-income housing credit (1) Additional housing credit dollar amount for Gulf Opportunity Zone (A) In general For purposes of section 42, in the case of calendar years 2006, 2007, and 2008, the State housing credit ceiling of each State, any portion of which is located in the Gulf Opportunity Zone, shall be increased by the lesser of (i) the aggregate housing credit dollar amount allocated by the State housing credit agency of such State to buildings located in the Gulf Opportunity Zone for such calendar year, or (ii) the Gulf Opportunity housing amount for such State for such calendar year. (B) Gulf Opportunity housing amount For purposes of subparagraph (A), the term Gulf Opportunity housing amount means, for any calendar year, the amount equal to the product of $18.00 multiplied by the portion of the State population which is in the Gulf Opportunity Zone (as determined on the basis of the most recent census estimate of resident population released by the Bureau of Census before August 28, 2005). (C) Allocations treated as made first from additional allocation amount for purposes of determining carryover For purposes of determining the unused State housing credit ceiling under section 42 (h)(3) (C) for any calendar year, any increase in the State housing credit ceiling under subparagraph (A) shall be treated as an amount described in clause (ii) of such section. (2) Additional housing credit dollar amount for Texas and Florida For purposes of section 42, in the case of calendar year 2006, the State housing credit ceiling of Texas and Florida shall each be increased by $3,500,000. (3) Difficult development area (A) In general For purposes of section 42, in the case of property placed in service during the period beginning on January 1, 2006, and ending on December 31, 2010, the Gulf Opportunity Zone, the Rita GO Zone, and the Wilma GO Zone (i) shall be treated as difficult development areas designated under subclause (I) of section 42 (d)(5)(C)(iii),[1] and (ii) shall not be taken into account for purposes of applying the limitation under subclause (II) of such section. (B) Application Subparagraph (A) shall apply only to (i) housing credit dollar amounts allocated during the period beginning on January 1, 2006, and ending on December 31, 2008, and (ii) buildings placed in service during the period described in subparagraph (A) to the extent that paragraph (1) of section 42(h) does not apply to any building by reason of paragraph (4) thereof, but only with respect to bonds issued after December 31, 2005. (4) Special rule for applying income tests In the case of property placed in service (A) during 2006, 2007, or 2008, (B) in the Gulf Opportunity Zone, and (C) in a nonmetropolitan area (as defined in section 42 (d)(5)(C)(iv)(IV)),[1]

section 42 shall be applied by substituting national nonmetropolitan median gross income (determined under rules similar to the rules of section142 (d)(2)(B)) for area median gross income in subparagraphs (A) and (B) of section 42 (g)(1). (5) Time for making low-income housing credit allocations Section 42 (h)(1)(B) shall not apply to an allocation of housing credit dollar amount to a building located in the Gulf Opportunity Zone, the Rita GO Zone, or the Wilma GO Zone, if such allocation is made in 2006, 2007, or 2008, and such building is placed in service before January 1, 2011. (6) Community development block grants not taken into account in determining if buildings are federally subsidized For purpose of applying section 42 (i)(2)(D) [1] to any building which is placed in service in the Gulf Opportunity Zone, the Rita GO Zone, or the Wilma GO Zone during the period beginning on January 1, 2006, and ending on December 31, 2010, a loan shall not be treated as a below market Federal loan solely by reason of any assistance provided under section 106, 107, or 108 of the Housing and Community Development Act of 1974 by reason of section 122 of such Act or any provision of the Department of Defense Appropriations Act, 2006, or the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Hurricane Recovery, 2006. (7) Definitions Any term used in this subsection which is also used in section 42 shall have the same meaning as when used in such section. (d) Special allowance for certain property acquired on or after August 28, 2005 (1) Additional allowance In the case of any qualified Gulf Opportunity Zone property (A) the depreciation deduction provided by section 167 (a) for the taxable year in which such property is placed in service shall include an allowance equal to 50 percent of the adjusted basis of such property, and (B) the adjusted basis of the qualified Gulf Opportunity Zone property shall be reduced by the amount of such deduction before computing the amount otherwise allowable as a depreciation deduction under this chapter for such taxable year and any subsequent taxable year. (2) Qualified Gulf Opportunity Zone property For purposes of this subsection (A) In general The term qualified Gulf Opportunity Zone property means property (i) (I) which is described in section 168 (k)(2)(A)(i), or (II) which is nonresidential real property or residential rental property, (ii) substantially all of the use of which is in the Gulf Opportunity Zone and is in the active conduct of a trade or business by the taxpayer in such Zone, (iii) the original use of which in the Gulf Opportunity Zone commences with the taxpayer on or after August 28, 2005, (iv) which is acquired by the taxpayer by purchase (as defined in section 179 (d)) on or after August 28, 2005, but only if no written binding contract for the acquisition was in effect before August 28, 2005, and (v) which is placed in service by the taxpayer on or before December 31, 2007 (December 31, 2008, in the case of nonresidential real property and residential rental property). (B) Exceptions (i) Alternative depreciation property Such term shall not include any property described in section 168 (k)(2)(D)(i). (ii) Tax-exempt bond-financed property Such term shall not include any property any portion of which is financed with the proceeds of any obligation the interest on which is exempt from tax under section 103. (iii) Qualified revitalization buildings Such term shall not include any qualified revitalization building with respect to which the taxpayer has elected the application of paragraph (1) or (2) of section 1400I (a).

(iv) Election out If a taxpayer makes an election under this clause with respect to any class of property for any taxable year, this subsection shall not apply to all property in such class placed in service during such taxable year. (3) Special rules For purposes of this subsection, rules similar to the rules of subparagraph (E) of section 168 (k)(2) shall apply, except that such subparagraph shall be applied (A) by substituting August 27, 2005 for December 31, 2007 each place it appears therein, (B) without regard to and before January 1, 2010 in clause (i) thereof, and (C) by substituting qualified Gulf Opportunity Zone property for qualified property in clause (iv) thereof. (4) Allowance against alternative minimum tax For purposes of this subsection, rules similar to the rules of section 168(k)(2)(G) shall apply. (5) Recapture For purposes of this subsection, rules similar to the rules under section179 (d)(10) shall apply with respect to any qualified Gulf Opportunity Zone property which ceases to be qualified Gulf Opportunity Zone property. (6) Extension for certain property (A) In general In the case of any specified Gulf Opportunity Zone extension property, paragraph (2)(A) shall be applied without regard to clause (v) thereof. (B) Specified Gulf Opportunity Zone extension property For purposes of this paragraph, the term specified Gulf Opportunity Zone extension property means property (i) substantially all of the use of which is in one or more specified portions of the GO Zone, and (ii) which is (I) nonresidential real property or residential rental property which is placed in service by the taxpayer on or before December 31, 2010, or (II) in the case of a taxpayer who places a building described in subclause (I) in service on or before December 31, 2010, property described in section 168 (k)(2)(A)(i) if substantially all of the use of such property is in such building and such property is placed in service by the taxpayer not later than 90 days after such building is placed in service. (C) Specified portions of the GO Zone For purposes of this paragraph, the term specified portions of the GO Zone means those portions of the GO Zone which are in any county or parish which is identified by the Secretary as being a county or parish in which hurricanes occurring during 2005 damaged (in the aggregate) more than 60 percent of the housing units in such county or parish which were occupied (determined according to the 2000 Census). (D) Only pre-January 1, 2010, basis of real property eligible for additional allowance In the case of property which is qualified Gulf Opportunity Zone property solely by reason of subparagraph (B)(ii)(I), paragraph (1) shall apply only to the extent of the adjusted basis thereof attributable to manufacture, construction, or production before January 1, 2010. (E) Exception for bonus depreciation property under section 168 (k) The term specified Gulf Opportunity Zone extension property shall not include any property to which section 168 (k) applies. (e) Increase in expensing under section 179 (1) In general For purposes of section 179 (A) the dollar amount in effect under section 179 (b)(1) for the taxable year shall be increased by the lesser of (i) $100,000, or (ii) the cost of qualified section 179 Gulf Opportunity Zone property placed in service during the taxable year, and (B) the dollar amount in effect under section 179 (b)(2) for the taxable year shall be increased by the lesser of (i) $600,000, or

(ii) the cost of qualified section 179 Gulf Opportunity Zone property placed in service during the taxable year. (2) Qualified section 179 Gulf Opportunity Zone property For purposes of this subsection (A) In general The term qualified section 179 Gulf Opportunity Zone property means section 179 property (as defined in section 179 (d)) which is qualified Gulf Opportunity Zone property (as defined in subsection (d)(2) without regard to subsection (d)(6)). (B) Extension for certain property In the case of property substantially all of the use of which is in one or more specified portions of the GO Zone (as defined by subsection (d)(6)), such term shall include section 179 property (as so defined) which is described in subsection (d)(2), determined (i) without regard to subsection (d)(6), and (ii) by substituting 2008 for 2007 in subparagraph (A)(v) thereof. (3) Coordination with empowerment zones and renewal communities For purposes of sections 1397A and 1400J, qualified section 179 Gulf Opportunity Zone property shall not be treated as qualified zone property or qualified renewal property, unless the taxpayer elects not to take such qualified section 179 Gulf Opportunity Zone property into account for purposes of this subsection. (4) Recapture For purposes of this subsection, rules similar to the rules under section179 (d)(10) shall apply with respect to any qualified section 179 Gulf Opportunity Zone property which ceases to be qualified section 179 Gulf Opportunity Zone property. (f) Expensing for certain demolition and clean-up costs (1) In general A taxpayer may elect to treat 50 percent of any qualified Gulf Opportunity Zone clean-up cost as an expense which is not chargeable to capital account. Any cost so treated shall be allowed as a deduction for the taxable year in which such cost is paid or incurred. (2) Qualified Gulf Opportunity Zone clean-up cost For purposes of this subsection, the term qualified Gulf Opportunity Zone clean-up cost means any amount paid or incurred during the period beginning on August 28, 2005, and ending on December 31, 2007, for the removal of debris from, or the demolition of structures on, real property which is located in the Gulf Opportunity Zone and which is (A) held by the taxpayer for use in a trade or business or for the production of income, or (B) property described in section 1221 (a)(1) in the hands of the taxpayer. For purposes of the preceding sentence, amounts paid or incurred shall be taken into account only to the extent that such amount would (but for paragraph (1)) be chargeable to capital account. (g) Extension of expensing for environmental remediation costs With respect to any qualified environmental remediation expenditure (as defined in section 198 (b)) paid or incurred on or after August 28, 2005, in connection with a qualified contaminated site located in the Gulf Opportunity Zone, section 198 (relating to expensing of environmental remediation costs) shall be applied (1) in the case of expenditures paid or incurred on or after August 28, 2005, and before January 1, 2008, by substituting December 31, 2007 for the date contained in section 198 (h), and (2) except as provided in section 198 (d)(2), by treating petroleum products (as defined in section 4612 (a)(3)) as a hazardous substance. (h) Increase in rehabilitation credit In the case of qualified rehabilitation expenditures (as defined in section 47(c)) paid or incurred during the period beginning on August 28, 2005, and ending on December 31, 2009, with respect to any qualified rehabilitated building or certified historic structure (as defined in section 47 (c)) located in the Gulf Opportunity Zone, subsection (a) of section 47 (relating to rehabilitation credit) shall be applied (1) by substituting 13 percent for 10 percent in paragraph (1) thereof, and (2) by substituting 26 percent for 20 percent in paragraph (2) thereof. (i) Special rules for small timber producers (1) Increased expensing for qualified timber property

In the case of qualified timber property any portion of which is located in the Gulf Opportunity Zone, in that portion of the Rita GO Zone which is not part of the Gulf Opportunity Zone, or in the Wilma GO Zone, the limitation under subparagraph (B) of section 194 (b)(1) shall be increased by the lesser of (A) the limitation which would (but for this subsection) apply under such subparagraph, or (B) the amount of reforestation expenditures (as defined in section194 (c)(3)) paid or incurred by the taxpayer with respect to such qualified timber property during the specified portion of the taxable year. (2) 5 year NOL carryback of certain timber losses For purposes of determining any farming loss under section 172 (i), income and deductions which are allocable to the specified portion of the taxable year and which are attributable to qualified timber property any portion of which is located in the Gulf Opportunity Zone, in that portion of the Rita GO Zone which is not part of the Gulf Opportunity Zone, or in the Wilma GO Zone shall be treated as attributable to farming businesses. (3) Rules not applicable to certain entities Paragraphs (1) and (2) shall not apply to any taxpayer which (A) is a corporation the stock of which is publicly traded on an established securities market, or (B) is a real estate investment trust. (4) Rules not applicable to large timber producers (A) Expensing Paragraph (1) shall not apply to any taxpayer if such taxpayer holds more than 500 acres of qualified timber property at any time during the taxable year. (B) NOL carryback Paragraph (2) shall not apply with respect to any qualified timber property unless (i) such property was held by the taxpayer (I) on August 28, 2005, in the case of qualified timber property any portion of which is located in the Gulf Opportunity Zone, (II) on September 23, 2005, in the case of qualified timber property (other than property described in subclause (I)) any portion of which is located in that portion of the Rita GO Zone which is not part of the Gulf Opportunity Zone, or (III) on October 23, 2005, in the case of qualified timber property (other than property described in subclause (I) or (II)) any portion of which is located in the Wilma GO Zone, and (ii) such taxpayer held not more than 500 acres of qualified timber property on such date. (5) Definitions For purposes of this subsection (A) Specified portion (i) In general The term specified portion means (I) in the case of qualified timber property any portion of which is located in the Gulf Opportunity Zone, that portion of the taxable year which is on or after August 28, 2005, and before the termination date, (II) in the case of qualified timber property (other than property described in clause (i)) any portion of which is located in the Rita GO Zone, that portion of the taxable year which is on or after September 23, 2005, and before the termination date, or (III) in the case of qualified timber property (other than property described in clause (i) or (ii)) any portion of which is located in the Wilma GO Zone, that portion of the taxable year which is on or after October 23, 2005, and before the termination date. (ii) Termination date The term termination date means (I) for purposes of paragraph (1), January 1, 2008, and (II) for purposes of paragraph (2), January 1, 2007. (B) Qualified timber property The term qualified timber property has the meaning given such term in section 194 (c)(1). (j) Special rule for Gulf Opportunity Zone public utility casualty losses (1) In general The amount described in section 172 (f)(1)(A) for any taxable year shall be increased by the Gulf Opportunity Zone public utility casualty loss for such taxable year. (2) Gulf Opportunity Zone public utility casualty loss

For purposes of this subsection, the term Gulf Opportunity Zone public utility casualty loss means any casualty loss of public utility property (as defined in section 168 (i)(10)) located in the Gulf Opportunity Zone if (A) such loss is allowed as a deduction under section 165 for the taxable year, (B) such loss is by reason of Hurricane Katrina, and (C) the taxpayer elects the application of this subsection with respect to such loss. (3) Reduction for gains from involuntary conversion The amount of any Gulf Opportunity Zone public utility casualty loss which would (but for this paragraph) be taken into account under paragraph (1) for any taxable year shall be reduced by the amount of any gain recognized by the taxpayer for such year from the involuntary conversion by reason of Hurricane Katrina of public utility property (as so defined) located in the Gulf Opportunity Zone. (4) Coordination with general disaster loss rules Subsection (k) and section 165 (i) shall not apply to any Gulf Opportunity Zone public utility casualty loss to the extent such loss is taken into account under paragraph (1). (5) Election Any election under paragraph (2)(C) shall be made in such manner as may be prescribed by the Secretary and shall be made by the due date (including extensions of time) for filing the taxpayers return for the taxable year of the loss. Such election, once made for any taxable year, shall be irrevocable for such taxable year. (k) Treatment of net operating losses attributable to Gulf Opportunity Zone losses (1) In general If a portion of any net operating loss of the taxpayer for any taxable year is a qualified Gulf Opportunity Zone loss, the following rules shall apply: (A) Extension of carryback period Section 172 (b)(1) shall be applied with respect to such portion (i) by substituting 5 taxable years for 2 taxable years in subparagraph (A)(i), and (ii) by not taking such portion into account in determining any eligible loss of the taxpayer under subparagraph (F) thereof for the taxable year. (B) Suspension of 90 percent AMT limitation Section 56 (d)(1) shall be applied by increasing the amount determined under subparagraph (A)(ii)(I) thereof by the sum of the carrybacks and carryovers of any net operating loss attributable to such portion. (2) Qualified Gulf Opportunity Zone loss For purposes of paragraph (1), the term qualified Gulf Opportunity Zone loss means the lesser of (A) the excess of (i) the net operating loss for such taxable year, over (ii) the specified liability loss for such taxable year to which a 10-year carryback applies under section 172 (b)(1)(C), or (B) the aggregate amount of the following deductions to the extent taken into account in computing the net operating loss for such taxable year: (i) Any deduction for any qualified Gulf Opportunity Zone casualty loss. (ii) Any deduction for moving expenses paid or incurred after August 27, 2005, and before January 1, 2008, and allowable under this chapter to any taxpayer in connection with the employment of any individual (I) whose principal place of abode was located in the Gulf Opportunity Zone before August 28, 2005, (II) who was unable to remain in such abode as the result of Hurricane Katrina, and (III) whose principal place of employment with the taxpayer after such expense is located in the Gulf Opportunity Zone. For purposes of this clause, the term moving expenses has the meaning given such term by section 217 (b), except that the taxpayers former residence and new residence may be the same residence if the initial vacating of the residence was as the result of Hurricane Katrina. (iii) Any deduction allowable under this chapter for expenses paid or incurred after August 27, 2005, and before January 1, 2008, to temporarily house any employee of the taxpayer whose principal place of employment is in the Gulf Opportunity Zone.

(iv) Any deduction for depreciation (or amortization in lieu of depreciation) allowable under this chapter with respect to any qualified Gulf Opportunity Zone property (as defined in subsection (d)(2), but without regard to subparagraph (B)(iv) thereof)) [1] for the taxable year such property is placed in service. (v) Any deduction allowable under this chapter for repair expenses (including expenses for removal of debris) paid or incurred after August 27, 2005, and before January 1, 2008, with respect to any damage attributable to Hurricane Katrina and in connection with property which is located in the Gulf Opportunity Zone. (3) Qualified Gulf Opportunity Zone casualty loss (A) In general For purposes of paragraph (2)(B)(i), the term qualified Gulf Opportunity Zone casualty loss means any uncompensated section1231 loss (as defined in section 1231(a)(3)(B)) of property located in the Gulf Opportunity Zone if (i) such loss is allowed as a deduction under section 165 for the taxable year, and (ii) such loss is by reason of Hurricane Katrina. (B) Reduction for gains from involuntary conversion The amount of qualified Gulf Opportunity Zone casualty loss which would (but for this subparagraph) be taken into account under subparagraph (A) for any taxable year shall be reduced by the amount of any gain recognized by the taxpayer for such year from the involuntary conversion by reason of Hurricane Katrina of property located in the Gulf Opportunity Zone. (C) Coordination with general disaster loss rules Section 165 (i) shall not apply to any qualified Gulf Opportunity Zone casualty loss to the extent such loss is taken into account under this subsection. (4) Special rules For purposes of paragraph (1), rules similar to the rules of paragraphs (2) and (3) of section 172 (i) shall apply with respect to such portion. (l) Credit to holders of Gulf tax credit bonds (1) Allowance of credit If a taxpayer holds a Gulf tax credit bond on one or more credit allowance dates of the bond occurring during any taxable year, there shall be allowed as a credit against the tax imposed by this chapter for the taxable year an amount equal to the sum of the credits determined under paragraph (2) with respect to such dates. (2) Amount of credit (A) In general The amount of the credit determined under this paragraph with respect to any credit allowance date for a Gulf tax credit bond is 25 percent of the annual credit determined with respect to such bond. (B) Annual credit The annual credit determined with respect to any Gulf tax credit bond is the product of (i) the credit rate determined by the Secretary under subparagraph (C) for the day on which such bond was sold, multiplied by (ii) the outstanding face amount of the bond. (C) Determination For purposes of subparagraph (B), with respect to any Gulf tax credit bond, the Secretary shall determine daily or cause to be determined daily a credit rate which shall apply to the first day on which there is a binding, written contract for the sale or exchange of the bond. The credit rate for any day is the credit rate which the Secretary or the Secretarys designee estimates will permit the issuance of Gulf tax credit bonds with a specified maturity or redemption date without discount and without interest cost to the issuer. (D) Credit allowance date For purposes of this subsection, the term credit allowance date means March 15, June 15, September 15, and December 15. Such term also includes the last day on which the bond is outstanding. (E) Special rule for issuance and redemption In the case of a bond which is issued during the 3-month period ending on a credit allowance date, the amount of the credit determined under this paragraph with respect to such credit allowance date shall be a ratable portion of the credit otherwise determined based on the

portion of the 3-month period during which the bond is outstanding. A similar rule shall apply when the bond is redeemed or matures. (3) Limitation based on amount of tax The credit allowed under paragraph (1) for any taxable year shall not exceed the excess of (A) the sum of the regular tax liability (as defined in section 26 (b)) plus the tax imposed by section 55, over (B) the sum of the credits allowable under part IV of subchapter A (other than subparts C, I, and J and this subsection). (4) Gulf tax credit bond For purposes of this subsection (A) In general The term Gulf tax credit bond means any bond issued as part of an issue if (i) the bond is issued by the State of Alabama, Louisiana, or Mississippi, (ii) 95 percent or more of the proceeds of such issue are to be used to (I) pay principal, interest, or premiums on qualified bonds issued by such State or any political subdivision of such State, or (II) make a loan to any political subdivision of such State to pay principal, interest, or premiums on qualified bonds issued by such political subdivision, (iii) the Governor of such State designates such bond for purposes of this subsection, (iv) the bond is a general obligation of such State and is in registered form (within the meaning of section 149 (a)), (v) the maturity of such bond does not exceed 2 years, and (vi) the bond is issued after December 31, 2005, and before January 1, 2007. (B) State matching requirement A bond shall not be treated as a Gulf tax credit bond unless (i) the issuer of such bond pledges as of the date of the issuance of the issue an amount equal to the face amount of such bond to be used for payments described in subclause (I) of subparagraph (A)(ii), or loans described in subclause (II) of such subparagraph, as the case may be, with respect to the issue of which such bond is a part, and (ii) any such payment or loan is made in equal amounts from the proceeds of such issue and from the amount pledged under clause (i). The requirement of clause (ii) shall be treated as met with respect to any such payment or loan made during the 1-year period beginning on the date of the issuance (or any successor 1-year period) if such requirement is met when applied with respect to the aggregate amount of such payments and loans made during such period. (C) Aggregate limit on bond designations The maximum aggregate face amount of bonds which may be designated under this subsection by the Governor of a State shall not exceed (i) $200,000,000 in the case of the State of Louisiana, (ii) $100,000,000 in the case of the State of Mississippi, and (iii) $50,000,000 in the case of the State of Alabama. (D) Special rules relating to arbitrage A bond which is part of an issue shall not be treated as a Gulf tax credit bond unless, with respect to the issue of which the bond is a part, the issuer satisfies the arbitrage requirements of section 148with respect to proceeds of the issue and any loans made with such proceeds. (5) Qualified bond For purposes of this subsection (A) In general The term qualified bond means any obligation of a State or political subdivision thereof which was outstanding on August 28, 2005. (B) Exception for private activity bonds Such term shall not include any private activity bond. (C) Exception for advance refundings Such term shall not include any bond with respect to which there is any outstanding refunded or refunding bond during the period in which a Gulf tax credit bond is outstanding with respect to such bond. (D) Use of proceeds requirement

Such term shall not include any bond issued as part of an issue if any portion of the proceeds of such issue was (or is to be) used to provide any property described in section 144 (c)(6) (B). (6) Credit included in gross income Gross income includes the amount of the credit allowed to the taxpayer under this subsection (determined without regard to paragraph (3)) and the amount so included shall be treated as interest income. (7) Other definitions and special rules For purposes of this subsection (A) Bond The term bond includes any obligation. (B) Partnership; S corporation; and other pass-thru entities (i) In general Under regulations prescribed by the Secretary, in the case of a partnership, trust, S corporation, or other pass-thru entity, rules similar to the rules of section 41 (g) shall apply with respect to the credit allowable under paragraph (1). (ii) No basis adjustment In the case of a bond held by a partnership or an S corporation, rules similar to the rules under section 1397E (l) shall apply. (C) Bonds held by regulated investment companies If any Gulf tax credit bond is held by a regulated investment company, the credit determined under paragraph (1) shall be allowed to shareholders of such company under procedures prescribed by the Secretary. (D) Reporting Issuers of Gulf tax credit bonds shall submit reports similar to the reports required under section 149 (e). (E) Credit treated as nonrefundable bondholder credit For purposes of this title, the credit allowed by this subsection shall be treated as a credit allowable under subpart H of part IV of subchapter A of this chapter. (m) Application of new markets tax credit to investments in community development entities serving Gulf Opportunity Zone For purposes of section 45D (1) a qualified community development entity shall be eligible for an allocation under subsection (f)(2) thereof of the increase in the new markets tax credit limitation described in paragraph (2) only if a significant mission of such entity is the recovery and redevelopment of the Gulf Opportunity Zone, (2) the new markets tax credit limitation otherwise determined under subsection (f)(1) thereof shall be increased by an amount equal to (A) $300,000,000 for 2005 and 2006, to be allocated among qualified community development entities to make qualified low-income community investments within the Gulf Opportunity Zone, and (B) $400,000,000 for 2007, to be so allocated, and (3) subsection (f)(3) thereof shall be applied separately with respect to the amount of the increase under paragraph (2). (n) Treatment of representations regarding income eligibility for purposes of qualified residential rental project requirements For purposes of determining if any residential rental project meets the requirements of section 142 (d)(1) and if any certification with respect to such project meets the requirements under section 142 (d)(7), the operator of the project may rely on the representations of any individual applying for tenancy in such project that such individuals income will not exceed the applicable income limits of section 142 (d)(1) upon commencement of the individuals tenancy if such tenancy begins during the 6-month period beginning on and after the date such individual was displaced by reason of Hurricane Katrina. (o) Treatment of public utility property disaster losses (1) In general Upon the election of the taxpayer, in the case of any eligible public utility property loss (A) section 165 (i) shall be applied by substituting the fifth taxable year immediately preceding for the taxable year immediately preceding, (B) an application for a tentative carryback adjustment of the tax for any prior taxable year affected by the application of subparagraph (A) may be made under section 6411, and

(C) section 6611 shall not apply to any overpayment attributable to such loss. (2) Eligible public utility property loss For purposes of this subsection (A) In general The term eligible public utility property loss means any loss with respect to public utility property located in the Gulf Opportunity Zone and attributable to Hurricane Katrina. (B) Public utility property The term public utility property has the meaning given such term by section 168 (i) (10) without regard to the matter following subparagraph (D) thereof. (3) Waiver of limitations If refund or credit of any overpayment of tax resulting from the application of paragraph (1) is prevented at any time before the close of the 1-year period beginning on the date of the enactment of this section by the operation of any law or rule of law (including res judicata), such refund or credit may nevertheless be made or allowed if claim therefor is filed before the close of such period. (p) Tax benefits not available with respect to certain property (1) Qualified Gulf Opportunity Zone property For purposes of subsections (d), (e), and (k)(2)(B)(iv), the term qualified Gulf Opportunity Zone property shall not include any property described in paragraph (3). (2) Qualified Gulf Opportunity Zone casualty losses For purposes of subsection (k)(2)(B)(i), the term qualified Gulf Opportunity Zone casualty loss shall not include any loss with respect to any property described in paragraph (3). (3) Property described (A) In general For purposes of this subsection, property is described in this paragraph if such property is (i) any property used in connection with any private or commercial golf course, country club, massage parlor, hot tub facility, suntan facility, or any store the principal business of which is the sale of alcoholic beverages for consumption off premises, or (ii) any gambling or animal racing property. (B) Gambling or animal racing property For purposes of subparagraph (A)(ii) (i) In general The term gambling or animal racing property means (I) any equipment, furniture, software, or other property used directly in connection with gambling, the racing of animals, or the on-site viewing of such racing, and (II) the portion of any real property (determined by square footage) which is dedicated to gambling, the racing of animals, or the on-site viewing of such racing. (ii) De minimis portion Clause (i)(II) shall not apply to any real property if the portion so dedicated is less than 100 square feet.

[1] See References in Text note below. [1] So in original. The second parenthesis probably should not appear.

1400O. Education tax benefits


How Current is This?

In the case of an individual who attends an eligible educational institution (as defined in section 25A (f)(2)) located in the Gulf Opportunity Zone for any taxable year beginning during 2005 or 2006 (1) in applying section 25A, the term qualified tuition and related expenses shall include any costs which are qualified higher education expenses (as defined in section 529 (e)(3)), (2) each of the dollar amounts in effect under subparagraphs (A) and (B) of section 25A (b) (1) shall be twice the amount otherwise in effect before the application of this subsection, and

(3) section 25A (c)(1) shall be applied by substituting 40 percent for 20 percent.

1400P. Housing tax benefits


How Current is This?

(a) Exclusion of employer provided housing for individual affected by Hurricane Katrina (1) In general Gross income of a qualified employee shall not include the value of any lodging furnished inkind to such employee (and such employees spouse or any of such employees dependents) by or on behalf of a qualified employer for any month during the taxable year. (2) Limitation The amount which may be excluded under paragraph (1) for any month for which lodging is furnished during the taxable year shall not exceed $600. (3) Treatment of exclusion The exclusion under paragraph (1) shall be treated as an exclusion under section 119 (other than for purposes of sections 3121 (a)(19) and 3306(b)(14)). (b) Employer credit for housing employees affected by Hurricane Katrina For purposes of section 38, in the case of a qualified employer, the Hurricane Katrina housing credit for any month during the taxable year is an amount equal to 30 percent of any amount which is excludable from the gross income of a qualified employee of such employer under subsection (a) and not otherwise excludable under section 119. (c) Qualified employee For purposes of this section, the term qualified employee means, with respect to any month, an individual (1) who had a principal residence (as defined in section 121) in the Gulf Opportunity Zone on August 28, 2005, and (2) who performs substantially all employment services (A) in the Gulf Opportunity Zone, and (B) for the qualified employer which furnishes lodging to such individual. (d) Qualified employer For purposes of this section, the term qualified employer means any employer with a trade or business located in the Gulf Opportunity Zone. (e) Certain rules to apply For purposes of this subsection, rules similar to the rules of sections 51 (i)(1)and 52 shall apply. (f) Application of section This section shall apply to lodging furnished during the period (1) beginning on the first day of the first month beginning after the date of the enactment of this section, and (2) ending on the date which is 6 months after the first day described in paragraph (1).

1400Q. Special rules for use of retirement funds


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(a) Tax-favored withdrawals from retirement plans (1) In general Section 72 (t) shall not apply to any qualified hurricane distribution. (2) Aggregate dollar limitation (A) In general

For purposes of this subsection, the aggregate amount of distributions received by an individual which may be treated as qualified hurricane distributions for any taxable year shall not exceed the excess (if any) of (i) $100,000, over (ii) the aggregate amounts treated as qualified hurricane distributions received by such individual for all prior taxable years. (B) Treatment of plan distributions If a distribution to an individual would (without regard to subparagraph (A)) be a qualified hurricane distribution, a plan shall not be treated as violating any requirement of this title merely because the plan treats such distribution as a qualified hurricane distribution, unless the aggregate amount of such distributions from all plans maintained by the employer (and any member of any controlled group which includes the employer) to such individual exceeds $100,000. (C) Controlled group For purposes of subparagraph (B), the term controlled group means any group treated as a single employer under subsection (b), (c), (m), or (o) of section 414. (3) Amount distributed may be repaid (A) In general Any individual who receives a qualified hurricane distribution may, at any time during the 3year period beginning on the day after the date on which such distribution was received, make one or more contributions in an aggregate amount not to exceed the amount of such distribution to an eligible retirement plan of which such individual is a beneficiary and to which a rollover contribution of such distribution could be made under section 402 (c), 403 (a)(4), 403 (b)(8), 408 (d)(3), or 457 (e)(16), as the case may be. (B) Treatment of repayments of distributions from eligible retirement plans other than IRAs For purposes of this title, if a contribution is made pursuant to subparagraph (A) with respect to a qualified hurricane distribution from an eligible retirement plan other than an individual retirement plan, then the taxpayer shall, to the extent of the amount of the contribution, be treated as having received the qualified hurricane distribution in an eligible rollover distribution (as defined in section402 (c)(4)) and as having transferred the amount to the eligible retirement plan in a direct trustee to trustee transfer within 60 days of the distribution. (C) Treatment of repayments for distributions from IRAs For purposes of this title, if a contribution is made pursuant to subparagraph (A) with respect to a qualified hurricane distribution from an individual retirement plan (as defined by section 7701 (a)(37)), then, to the extent of the amount of the contribution, the qualified hurricane distribution shall be treated as a distribution described in section 408 (d)(3) and as having been transferred to the eligible retirement plan in a direct trustee to trustee transfer within 60 days of the distribution. (4) Definitions For purposes of this subsection (A) Qualified hurricane distribution Except as provided in paragraph (2), the term qualified hurricane distribution means (i) any distribution from an eligible retirement plan made on or after August 25, 2005, and before January 1, 2007, to an individual whose principal place of abode on August 28, 2005, is located in the Hurricane Katrina disaster area and who has sustained an economic loss by reason of Hurricane Katrina, (ii) any distribution (which is not described in clause (i)) from an eligible retirement plan made on or after September 23, 2005, and before January 1, 2007, to an individual whose principal place of abode on September 23, 2005, is located in the Hurricane Rita disaster area and who has sustained an economic loss by reason of Hurricane Rita, and (iii) any distribution (which is not described in clause (i) or (ii)) from an eligible retirement plan made on or after October 23, 2005, and before January 1, 2007, to an individual whose principal place of abode on October 23, 2005, is located in the Hurricane Wilma disaster area and who has sustained an economic loss by reason of Hurricane Wilma. (B) Eligible retirement plan

The term eligible retirement plan shall have the meaning given such term by section 402 (c)(8)(B). (5) Income inclusion spread over 3-year period (A) In general In the case of any qualified hurricane distribution, unless the taxpayer elects not to have this paragraph apply for any taxable year, any amount required to be included in gross income for such taxable year shall be so included ratably over the 3-taxable year period beginning with such taxable year. (B) Special rule For purposes of subparagraph (A), rules similar to the rules of subparagraph (E) of section 408A (d)(3) shall apply. (6) Special rules (A) Exemption of distributions from trustee to trustee transfer and withholding rules For purposes of sections 401 (a)(31), 402 (f), and 3405, qualified hurricane distributions shall not be treated as eligible rollover distributions. (B) Qualified hurricane distributions treated as meeting plan distribution requirements For purposes [1] this title, a qualified hurricane distribution shall be treated as meeting the requirements of sections 401 (k)(2)(B)(i), 403(b)(7)(A)(ii), 403 (b)(11), and 457 (d)(1)(A). (b) Recontributions of withdrawals for home purchases (1) Recontributions (A) In general Any individual who received a qualified distribution may, during the applicable period, make one or more contributions in an aggregate amount not to exceed the amount of such qualified distribution to an eligible retirement plan (as defined in section 402(c)(8)(B)) of which such individual is a beneficiary and to which a rollover contribution of such distribution could be made under section 402 (c), 403 (a)(4),403 (b)(8), or 408 (d)(3), as the case may be. (B) Treatment of repayments Rules similar to the rules of subparagraphs (B) and (C) of subsection (a)(3) shall apply for purposes of this subsection. (2) Qualified distribution For purposes of this subsection (A) In general The term qualified distribution means any qualified Katrina distribution, any qualified Rita distribution, and any qualified Wilma distribution. (B) Qualified Katrina distribution The term qualified Katrina distribution means any distribution (i) described in section 401 (k)(2)(B)(i)(IV), 403 (b)(7)(A)(ii) (but only to the extent such distribution relates to financial hardship), 403(b)(11)(B), or 72(t)(2)(F), (ii) received after February 28, 2005, and before August 29, 2005, and (iii) which was to be used to purchase or construct a principal residence in the Hurricane Katrina disaster area, but which was not so purchased or constructed on account of Hurricane Katrina. (C) Qualified Rita distribution The term qualified Rita distribution means any distribution (other than a qualified Katrina distribution) (i) described in section 401 (k)(2)(B)(i)(IV), 403 (b)(7)(A)(ii) (but only to the extent such distribution relates to financial hardship), 403(b)(11)(B), or 72(t)(2)(F), (ii) received after February 28, 2005, and before September 24, 2005, and (iii) which was to be used to purchase or construct a principal residence in the Hurricane Rita disaster area, but which was not so purchased or constructed on account of Hurricane Rita. (D) Qualified Wilma distribution The term qualified Wilma distribution means any distribution (other than a qualified Katrina distribution or a qualified Rita distribution) (i) described in section 401 (k)(2)(B)(i)(IV), 403 (b)(7)(A)(ii) (but only to the extent such distribution relates to financial hardship), 403(b)(11)(B), or 72(t)(2)(F), (ii) received after February 28, 2005, and before October 24, 2005, and

(iii) which was to be used to purchase or construct a principal residence in the Hurricane Wilma disaster area, but which was not so purchased or constructed on account of Hurricane Wilma. (3) Applicable period For purposes of this subsection, the term applicable period means (A) with respect to any qualified Katrina distribution, the period beginning on August 25, 2005, and ending on February 28, 2006, (B) with respect to any qualified Rita distribution, the period beginning on September 23, 2005, and ending on February 28, 2006, and (C) with respect to any qualified Wilma distribution, the period beginning on October 23, 2005, and ending on February 28, 2006. (c) Loans from qualified plans (1) Increase in limit on loans not treated as distributions In the case of any loan from a qualified employer plan (as defined under section 72 (p)(4)) to a qualified individual made during the applicable period (A) clause (i) of section 72 (p)(2)(A) shall be applied by substituting $100,000 for $50,000, and (B) clause (ii) of such section shall be applied by substituting the present value of the nonforfeitable accrued benefit of the employee under the plan for one-half of the present value of the nonforfeitable accrued benefit of the employee under the plan. (2) Delay of repayment In the case of a qualified individual with an outstanding loan on or after the qualified beginning date from a qualified employer plan (as defined in section 72 (p)(4)) (A) if the due date pursuant to subparagraph (B) or (C) of section 72(p)(2) for any repayment with respect to such loan occurs during the period beginning on the qualified beginning date and ending on December 31, 2006, such due date shall be delayed for 1 year, (B) any subsequent repayments with respect to any such loan shall be appropriately adjusted to reflect the delay in the due date under paragraph (1) and any interest accruing during such delay, and (C) in determining the 5-year period and the term of a loan under subparagraph (B) or (C) of section 72 (p)(2), the period described in subparagraph (A) shall be disregarded. (3) Qualified individual For purposes of this subsection (A) In general The term qualified individual means any qualified Hurricane Katrina individual, any qualified Hurricane Rita individual, and any qualified Hurricane Wilma individual. (B) Qualified Hurricane Katrina individual The term qualified Hurricane Katrina individual means an individual whose principal place of abode on August 28, 2005, is located in the Hurricane Katrina disaster area and who has sustained an economic loss by reason of Hurricane Katrina. (C) Qualified Hurricane Rita individual The term qualified Hurricane Rita individual means an individual (other than a qualified Hurricane Katrina individual) whose principal place of abode on September 23, 2005, is located in the Hurricane Rita disaster area and who has sustained an economic loss by reason of Hurricane Rita. (D) Qualified Hurricane Wilma individual The term qualified Hurricane Wilma individual means an individual (other than a qualified Hurricane Katrina individual or a qualified Hurricane Rita individual) whose principal place of abode on October 23, 2005, is located in the Hurricane Wilma disaster area and who has sustained an economic loss by reason of Hurricane Wilma. (4) Applicable period; qualified beginning date For purposes of this subsection (A) Hurricane Katrina In the case of any qualified Hurricane Katrina individual (i) the applicable period is the period beginning on September 24, 2005, and ending on December 31, 2006, and (ii) the qualified beginning date is August 25, 2005. (B) Hurricane Rita

In the case of any qualified Hurricane Rita individual (i) the applicable period is the period beginning on the date of the enactment of this subsection and ending on December 31, 2006, and (ii) the qualified beginning date is September 23, 2005. (C) Hurricane Wilma In the case of any qualified Hurricane Wilma individual (i) the applicable period is the period beginning on the date of the enactment of this subparagraph and ending on December 31, 2006, and (ii) the qualified beginning date is October 23, 2005. (d) Provisions relating to plan amendments (1) In general If this subsection applies to any amendment to any plan or annuity contract, such plan or contract shall be treated as being operated in accordance with the terms of the plan during the period described in paragraph (2)(B)(i). (2) Amendments to which subsection applies (A) In general This subsection shall apply to any amendment to any plan or annuity contract which is made (i) pursuant to any provision of this section, or pursuant to any regulation issued by the Secretary or the Secretary of Labor under any provision of this section, and (ii) on or before the last day of the first plan year beginning on or after January 1, 2007, or such later date as the Secretary may prescribe. In the case of a governmental plan (as defined in section 414 (d)), clause (ii) shall be applied by substituting the date which is 2 years after the date otherwise applied under clause (ii). (B) Conditions This subsection shall not apply to any amendment unless (i) during the period (I) beginning on the date that this section or the regulation described in subparagraph (A)(i) takes effect (or in the case of a plan or contract amendment not required by this section or such regulation, the effective date specified by the plan), and (II) ending on the date described in subparagraph (A)(ii) (or, if earlier, the date the plan or contract amendment is adopted), the plan or contract is operated as if such plan or contract amendment were in effect; and (ii) such plan or contract amendment applies retroactively for such period.

[1] So in original. Probably should be followed by of.

1400R. Employment relief


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(a) Employee retention credit for employers affected by Hurricane Katrina (1) In general For purposes of section 38, in the case of an eligible employer, the Hurricane Katrina employee retention credit for any taxable year is an amount equal to 40 percent of the qualified wages with respect to each eligible employee of such employer for such taxable year. For purposes of the preceding sentence, the amount of qualified wages which may be taken into account with respect to any individual shall not exceed $6,000. (2) Definitions For purposes of this subsection (A) Eligible employer The term eligible employer means any employer (i) which conducted an active trade or business on August 28, 2005, in the GO Zone, and (ii) with respect to whom the trade or business described in clause (i) is inoperable on any day after August 28, 2005, and before January 1, 2006, as a result of damage sustained by reason of Hurricane Katrina. (B) Eligible employee

The term eligible employee means with respect to an eligible employer an employee whose principal place of employment on August 28, 2005, with such eligible employer was in the GO Zone. (C) Qualified wages The term qualified wages means wages (as defined in section 51(c)(1), but without regard to section 3306 (b)(2)(B)) paid or incurred by an eligible employer with respect to an eligible employee on any day after August 28, 2005, and before January 1, 2006, which occurs during the period (i) beginning on the date on which the trade or business described in subparagraph (A) first became inoperable at the principal place of employment of the employee immediately before Hurricane Katrina, and (ii) ending on the date on which such trade or business has resumed significant operations at such principal place of employment. Such term shall include wages paid without regard to whether the employee performs no services, performs services at a different place of employment than such principal place of employment, or performs services at such principal place of employment before significant operations have resumed. (3) Certain rules to apply For purposes of this subsection, rules similar to the rules of sections 51(i)(1) and 52 shall apply. (4) Employee not taken into account more than once An employee shall not be treated as an eligible employee for purposes of this subsection for any period with respect to any employer if such employer is allowed a credit under section 51 with respect to such employee for such period. (b) Employee retention credit for employers affected by Hurricane Rita (1) In general For purposes of section 38, in the case of an eligible employer, the Hurricane Rita employee retention credit for any taxable year is an amount equal to 40 percent of the qualified wages with respect to each eligible employee of such employer for such taxable year. For purposes of the preceding sentence, the amount of qualified wages which may be taken into account with respect to any individual shall not exceed $6,000. (2) Definitions For purposes of this subsection (A) Eligible employer The term eligible employer means any employer (i) which conducted an active trade or business on September 23, 2005, in the Rita GO Zone, and (ii) with respect to whom the trade or business described in clause (i) is inoperable on any day after September 23, 2005, and before January 1, 2006, as a result of damage sustained by reason of Hurricane Rita. (B) Eligible employee The term eligible employee means with respect to an eligible employer an employee whose principal place of employment on September 23, 2005, with such eligible employer was in the Rita GO Zone. (C) Qualified wages The term qualified wages means wages (as defined in section 51(c)(1), but without regard to section 3306 (b)(2)(B)) paid or incurred by an eligible employer with respect to an eligible employee on any day after September 23, 2005, and before January 1, 2006, which occurs during the period (i) beginning on the date on which the trade or business described in subparagraph (A) first became inoperable at the principal place of employment of the employee immediately before Hurricane Rita, and (ii) ending on the date on which such trade or business has resumed significant operations at such principal place of employment. Such term shall include wages paid without regard to whether the employee performs no services, performs services at a different place of employment than such principal place of employment, or performs services at such principal place of employment before significant operations have resumed.

(3) Certain rules to apply For purposes of this subsection, rules similar to the rules of sections 51(i)(1) and 52 shall apply. (4) Employee not taken into account more than once An employee shall not be treated as an eligible employee for purposes of this subsection for any period with respect to any employer if such employer is allowed a credit under subsection (a) or section 51 with respect to such employee for such period. (c) Employee retention credit for employers affected by Hurricane Wilma (1) In general For purposes of section 38, in the case of an eligible employer, the Hurricane Wilma employee retention credit for any taxable year is an amount equal to 40 percent of the qualified wages with respect to each eligible employee of such employer for such taxable year. For purposes of the preceding sentence, the amount of qualified wages which may be taken into account with respect to any individual shall not exceed $6,000. (2) Definitions For purposes of this subsection (A) Eligible employer The term eligible employer means any employer (i) which conducted an active trade or business on October 23, 2005, in the Wilma GO Zone, and (ii) with respect to whom the trade or business described in clause (i) is inoperable on any day after October 23, 2005, and before January 1, 2006, as a result of damage sustained by reason of Hurricane Wilma. (B) Eligible employee The term eligible employee means with respect to an eligible employer an employee whose principal place of employment on October 23, 2005, with such eligible employer was in the Wilma GO Zone. (C) Qualified wages The term qualified wages means wages (as defined in section 51(c)(1), but without regard to section 3306 (b)(2)(B)) paid or incurred by an eligible employer with respect to an eligible employee on any day after October 23, 2005, and before January 1, 2006, which occurs during the period (i) beginning on the date on which the trade or business described in subparagraph (A) first became inoperable at the principal place of employment of the employee immediately before Hurricane Wilma, and (ii) ending on the date on which such trade or business has resumed significant operations at such principal place of employment. Such term shall include wages paid without regard to whether the employee performs no services, performs services at a different place of employment than such principal place of employment, or performs services at such principal place of employment before significant operations have resumed. (3) Certain rules to apply For purposes of this subsection, rules similar to the rules of sections 51(i)(1) and 52 shall apply. (4) Employee not taken into account more than once An employee shall not be treated as an eligible employee for purposes of this subsection for any period with respect to any employer if such employer is allowed a credit under subsection (a) or (b) or section 51with respect to such employee for such period.

1400S. Additional tax relief provisions


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(a) Temporary suspension of limitations on charitable contributions (1) In general

Except as otherwise provided in paragraph (2), section 170 (b) shall not apply to qualified contributions and such contributions shall not be taken into account for purposes of applying subsections (b) and (d) of section170 to other contributions. (2) Treatment of excess contributions For purposes of section 170 (A) Individuals In the case of an individual (i) Limitation Any qualified contribution shall be allowed only to the extent that the aggregate of such contributions does not exceed the excess of the taxpayers contribution base (as defined in subparagraph (G) of section 170 (b)(1)) over the amount of all other charitable contributions allowed under section 170 (b)(1). (ii) Carryover If the aggregate amount of qualified contributions made in the contribution year (within the meaning of section 170(d)(1)) exceeds the limitation of clause (i), such excess shall be added to the excess described in the portion of subparagraph (A) of such section which precedes clause (i) thereof for purposes of applying such section. (B) Corporations In the case of a corporation (i) Limitation Any qualified contribution shall be allowed only to the extent that the aggregate of such contributions does not exceed the excess of the taxpayers taxable income (as determined under paragraph (2) of section 170 (b)) over the amount of all other charitable contributions allowed under such paragraph. (ii) Carryover Rules similar to the rules of subparagraph (A)(ii) shall apply for purposes of this subparagraph. (3) Exception to overall limitation on itemized deductions So much of any deduction allowed under section 170 as does not exceed the qualified contributions paid during the taxable year shall not be treated as an itemized deduction for purposes of section 68. (4) Qualified contributions (A) In general For purposes of this subsection, the term qualified contribution means any charitable contribution (as defined in section 170 (c)) if (i) such contribution is paid during the period beginning on August 28, 2005, and ending on December 31, 2005, in cash to an organization described in section 170 (b)(1)(A) (other than an organization described in section 509 (a)(3)), (ii) in the case of a contribution paid by a corporation, such contribution is for relief efforts related to Hurricane Katrina, Hurricane Rita, or Hurricane Wilma, and (iii) the taxpayer has elected the application of this subsection with respect to such contribution. (B) Exception Such term shall not include a contribution if the contribution is for establishment of a new, or maintenance in an existing, segregated fund or account with respect to which the donor (or any person appointed or designated by such donor) has, or reasonably expects to have, advisory privileges with respect to distributions or investments by reason of the donors status as a donor. (C) Application of election to partnerships and S corporations In the case of a partnership or S corporation, the election under subparagraph (A)(iii) shall be made separately by each partner or shareholder. (b) Suspension of certain limitations on personal casualty losses Paragraphs (1) and (2)(A) of section 165 (h) shall not apply to losses described in section 165 (c)(3) (1) which arise in the Hurricane Katrina disaster area on or after August 25, 2005, and which are attributable to Hurricane Katrina, (2) which arise in the Hurricane Rita disaster area on or after September 23, 2005, and which are attributable to Hurricane Rita, or (3) which arise in the Hurricane Wilma disaster area on or after October 23, 2005, and which are attributable to Hurricane Wilma. In the case of any other losses, section 165 (h)(2)(A) shall be applied without regard to the losses referred to in the preceding sentence.

(c) Required exerci